                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                 KATHRINA H. TOBIAS, Plaintiff/Appellant,

                                          v.

 DANA HOGLE; THE BRADSHAW HOGLE FIRM; PAUL MCQUEEN,
                   Defendants/Appellees.

                              No. 1 CA-CV-12-0793
                                FILED 2-25-2014


            Appeal from the Superior Court in Maricopa County
                           No. CV2012-054342
                The Honorable Michael D. Gordon, Judge

                                    AFFIRMED


                                    COUNSEL

Kathrina H. Tobias, In propria persona, Phoenix

Appellant

Warnock, MacKinlay & Carman, PLLC, Mesa
By J. Kent MacKinlay

Counsel for Defendants/Appellees Dana Hogle and the Bradshaw Hogle Law
Firm
                           TOBIAS v. HOGLE et al.
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


T H O M P S O N, Judge:

¶1           Kathrina H. Tobias (Tobias) appeals from the trial court’s
order dismissing her complaint for lack of subject matter jurisdiction. For
the following reasons, we affirm.

                 FACTUAL AND PROCEDURAL HISTORY

¶2           Tobias owned a coffee shop. In 2009, she hired Sean Stapley1
and Stapley Plumbing (collectively Stapley) to do plumbing work at the
coffee shop. Before the job was finished, Tobias and Stapley got into a
dispute over payment and Stapley walked off the job. Tobias filed a
complaint against Stapley with the Arizona Registrar of Contractors
(ROC). She then hired defendants Paul McQueen and McQueen
Plumbing (collectively McQueen) to finish the job.

¶3            Stapley hired defendants Dana Hogle (Hogle) and the
Bradshaw Hogle Law Firm and filed a complaint against Tobias and
others in Maricopa County Superior Court in December 2009. Stapley
sought over $12,000 in alleged unpaid fees plus attorneys’ fees. Tobias
filed for bankruptcy in federal court in April 2010. Stapley, McQueen,
and Hogle were listed as creditors in the bankruptcy. The trial court
subsequently dismissed Stapley’s case with prejudice in February 2011.

¶4           In October 2011, Hogle went to the coffee shop to speak with
Tobias about her ROC complaint. Tobias refused to speak with Hogle,
and he left her a note on a paper bag threatening to initiate a lawsuit
against her for “fraud, malicious prosecution and abuse of process.”
Tobias sent a copy of the note to the judge assigned to her bankruptcy




1   Sean Stapley is deceased and therefore no longer a defendant in this case.



                                       2
                         TOBIAS v. HOGLE et al.
                          Decision of the Court

case. The bankruptcy judge sanctioned Hogle $3000 for violating 11
U.S.C. § 524(a)(2) (2010).2

¶5            In July 2012, Tobias, who was unrepresented by counsel,
filed a complaint in superior court against Stapley, Hogle, the Bradshaw
Hogle Law Firm, and McQueen. She alleged that McQueen violated 11
U.S.C. § 524(a)(2) by complaining about her failure to pay him to others.
She alleged that all of the defendants violated the bankruptcy injunction
by “verbally assault[ing] . . . , harass[ing] and intimidat[ing]” her and by
causing her emotional distress and harm. She further alleged that the
defendants made false statements to the ROC and the court “in their
attempt to circumvent the . . . [i]njunction,” which also caused her
emotional distress and harm. Finally, she alleged that all of the
defendants violated the Fair Debt Collection Practice Act (FDCPA), 15
U.S.C. 1601, et seq.

¶6            Hogle and the Bradshaw Hogle Law Firm filed a motion to
dismiss Tobias’s complaint for lack of subject matter jurisdiction.
McQueen joined in the motion to dismiss. After oral argument, the trial
court found that it did not have subject matter jurisdiction and dismissed
the complaint. Tobias filed a notice of appeal prematurely and this court
suspended the appeal to allow the trial court to enter a final judgment.
The court did so. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) § 12-2101(B).

                              DISCUSSION

¶7           On appeal, Tobias argues that the trial court erred by
concluding that it lacked subject matter jurisdiction and dismissing her
complaint. We review the trial court’s judgment granting a motion to
dismiss de novo.


2 11 U.S.C. § 524(a)(2) states that a discharge in a bankruptcy case
“operates as an injunction against . . .the employment of process, or an act,
to collect, recover or offset any such debt as a personal liability of the
debtor . . ..” The remedy for violating § 524 is compensatory civil
contempt pursuant to 11 U.S.C. § 105 (a). Walls v. Wells Fargo Bank, N.A.,
276 F.3d 502, 507 (9th Cir. 2002) (citing 4 Collier on Bankruptcy ¶
524.02(2)(c) (15th ed. 1999); Pertuso v. Ford Motor Credit Co., 233 F.3d 417,
423 (6th Cir. 2000); Cox v. Zale Delaware Inc., 239 F.3d 910, 917 (7th Cir.
2001) (“suit for violation of § 524 can only be brought as contempt
action.”)).



                                     3
                         TOBIAS v. HOGLE et al.
                          Decision of the Court

¶8            At the outset, we note that Tobias’s opening brief fails to
comply with the Arizona Rules of Civil Appellate Procedure. Arizona
Rule of Civil Appellate Procedure (ARCAP) 13(a)(4) requires “[a]
statement of facts relevant to the issues presented for review, with
appropriate references to the record.” Rule 13(a)(5) requires “[a]
statement of the issues presented for review.” Rule 13(a)(6) requires an
argument section “contain[ing] the contentions of the appellant with
respect to the issues presented, and the reasons therefor, with citations to
the authorities, statutes and parts of the record relied on.”

¶9            Tobias’s opening brief fails to provide a statement of facts or
an issue statement. Instead, in a section entitled “Summary,” which
contains no record references, Tobias states that she “incorporates by
reference her documents in the Superior Court matter . . . .” This does not
comply with ARCAP 13(a)(4). The argument section contains the correct
standard of review, but the majority of the argument section is unclear
and lacks relevant citations. See ARCAP 13(a) (all portions of the opening
brief should be set forth “concisely and clearly.”).

¶10           The opening brief fails to even minimally comply with
ARCAP 13. We may dismiss the appeal for this reason. See Adams v.
Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342-43, 678 P.2d 525, 527-28 (App.
1984). However, to the extent that Tobias argues that the trial court erred
by concluding that it lacked subject matter jurisdiction and by relying on
Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002), we find no
error.

¶11            First, the federal bankruptcy court has exclusive jurisdiction
to resolve issues regarding alleged violations of Tobias’s bankruptcy stay.
See MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 916 (9th Cir.
1996) (holding that a debtor’s malicious prosecution claim in federal
district court against a creditor was preempted by the bankruptcy code).
Here, the bankruptcy court did in fact sanction Hogle $3000 for violating §
524.


¶12            Second, Tobias has no private cause of action for alleged
violations of the stay, nor can she bring a claim under the FDCPA against
these defendants. In Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, the 9th
Circuit Court of Appeals dismissed a debtor’s lawsuit in federal district
court against a creditor because it found that there was no private right of
action for a debtor discharged from bankruptcy to enforce an alleged
violation of 11 U.S.C. § 524. Id. at 507-09. The court also found that the


                                     4
                        TOBIAS v. HOGLE et al.
                         Decision of the Court

debtor could not bring a claim under the FDCPA because to allow such a
claim “would allow through the back door what [the debtor] cannot
accomplish through the front door – a private right of action” thereby
circumventing the bankruptcy code. Id. at 510.


                            CONCLUSION

¶13          For the foregoing reasons, we affirm the trial court’s order
dismissing the complaint.




                                    :mjt




                                   5
