Contributed by Elisa Lemmer
Written in Spanish, this blog’s title means, “What’s happening in the world of notices?” Luckily for non-Spanish speakers, I’ve translated the title so all of us understand what it means. But what happens when the debtor delivers a legal notice or a bankruptcy pleading to a non-English speaker? Is it incumbent on the debtor to translate the pleading into the recipient’s native language? What if the notice is delivered to someone residing in Puerto Rico, for example, where Spanish is the prominent spoken language?
The court in In re Caribbean Petroleum Corp., 2010 WL 5093632 (Bankr. D. Del. Dec. 8, 2010) (KCG) recently addressed this issue when certain counterparties to the debtors’ franchise contracts who resided in Puerto Rico argued that the debtors’ rejection notice deprived them of due process because it was written in English and lacked a Spanish translation. They contended that many of the franchisees were Spanish-speaking and that, as to them, the notice was insufficient. The court resolved the issue easily by noting that the official languages of Puerto Rico are English and Spanish and concluded that the franchisees provided no evidence that they did not speak English or had been prejudiced by the English-only documents. Citing a 20-year old case issued by the Bankruptcy Court for the District of Colorado, Storage Tech. Corp. v. Comite Pro Rescate de La Salud (In re Storage Tech. Corp.), 117 B.R. 610, 621 (Bankr. D. Colo. 1990), Judge Gross noted that there, too, the bankruptcy court found that where the evidence showed that Spanish and English were used indiscriminately in Puerto Rico, failure to provide notice of a bar date in Spanish in Puerto Rico did not deprive the potential claimants of due process.
Both decisions, however, share a common denominator – they found that that the recipients of the notices in their cases either spoke English or lived in a place (Puerto Rico) where English was the official language and its residents, presumably, used English “indiscriminately.” Finding that persons who speak English are not required to receive legal notices in every other language they might speak or even in their primary language is logical. It is harder, however, to conclude that a person who receives a legal document in a language he or she cannot understand has received proper notice simply because they reside in a location where English is the official language. The court in Caribbean Petroleum implicitly seemed to acknowledge this when it found that there was no evidence that the franchisees did not speak English or that they had been prejudiced by the English-language documents. What would the court in Caribbean Petroleum have done if it had found that the franchisees did not understand the documents they received? Would it have found that the rejection notice was not adequate? Would it have accommodated the franchisees? How have other courts tackled this and similar issues concerning language barriers? Should the results of a case differ in states where English is the official language from states that have no official language? (Interestingly, there is no federal law decreeing English as the official language of the United States).
Surprisingly, there is a paucity of cases on this subject. Perhaps this is because, in most corporate bankruptcy cases, creditors tend to be English-speaking, and the issue never arises. Or, it might be because debtors who have non-English speaking creditors have proactively translated legal documents for those constituencies. Alternatively, non-English speakers might never complain about the documents they can’t understand.
A decision issued by the Bankruptcy Court for the Southern District of Florida in 2006, In re Petit-Louis, 344 B.R. 696 (Bankr. S.D. Fl. 2006), shows that courts are becoming mindful of the effect of an English language-based bankruptcy process on non-English speaking individuals. There, an individual chapter 7 debtor who spoke only Creole sought an order waiving the requirement to obtain credit counseling provided by section 109(h) of the Bankruptcy Code. The individual’s counsel stated that she had attempted to obtain credit counseling in Creole for her client, but none of the approved credit counseling agencies were able to provide counseling in Creole. Seeing as her client would not be able to obtain the requisite counseling, counsel to the debtor requested that the United States Trustee waive the credit counseling requirement, provide him with a Creole interpreter, or decertify existing credit counseling agencies on the basis that they had failed to provide Creole-speaking counselors. The United States Trustee refused and sought to dismiss the debtor’s case for failure to obtain the requisite credit counseling. The bankruptcy court, however, waived the requirement, and denied the United States Trustee’s motion for reconsideration of the issue.
In a sharply worded decision, the bankruptcy court admonished the United States Trustee stating, “The U.S. Trustee’s disregard for non-English speaking residents seeking counseling in the Southern District of Florida, a district which the U.S. Trustee admits ‘presents its own unique set of language issues’, evidenced the failure of the Office of the U.S. Trustee to comply with its duties in determining whether counseling services are adequate in this district. If the U.S. Trustee fails to manage the bankruptcy counseling system in a non-discriminatory fashion, the Court has the authority and indeed the responsibility to allow a debtor access to the bankruptcy system by waiving a requirement which, in practice, is inappropriately excluding him on the basis of his lack of English language ability.” The court went on to reject the U.S. Trustee’s argument that the debtor could have received the counseling in English using a friend as a translator noting that judicial proceedings require certified translators. Relying on friends and relatives to translate important legal issues would not ensure accuracy.
The Caribbean Petroleum and Petit-Louis decisions serve as a strong reminder that as our economy continues to become more global and non-English speakers continue to immigrate to the United States, courts and debtors, alike, will need to be mindful of ensuring that the interests of persons who do not speak English are adequately protected in the American bankruptcy system. Although these decisions should not be read as advising debtors, for example, to translate all of their legal documents into a myriad of foreign languages, debtors should be cognizant of their creditor constituency. If they suspect a language barrier may become an issue for their creditors, perhaps it is better to play it safe and take proactive steps by showing that they have provided the creditor with legal notices the creditor can actually understand. And, because I like to practice what I preach, I’ve translated my blog entry into Spanish. Click here for a Spanish translation of this blog entry. (Oprima aquí para una traducción en español).
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