Cribbs v. Accredited Collection Service, Inc. et al
ORDER - The defendants' motion for summary judgment (filing 70 ) is granted. The plaintiff's motion for summary judgment (filing 29 ) is denied. The plaintiff's motion to strike (filing 44 ) is denied. The plaintiff's motion to reconsider (filing 53 ) is denied as moot. The plaintiff's motion to reassert (filing 79 ) is denied. The defendants' motion to strike (filing 81 ) is denied as moot. The defendants' objection (filing 84 ) is denied as moot. The plaintiff's complaint is dismissed. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SERVICES, INC., and BRUMBAUGH
& QUANDAHL, P.C.,
This is a case of counsel run amuck. The actual facts of this case are
simple and straightforward: two letters, a telephone call, and a default
judgment in state court. But the parties have managed to turn that into
seven pending motions and several hundred pages of evidence and argument.
And their 16 briefs are littered with accusations and invective against
opposing parties and opposing counsel. That is, in some part, the Court's
fault: the Court should not have let things get this far out of control. But it
In an effort to cut through the Gordian knot into which the parties have
tied themselves, the Court will skip almost to the end: the defendants' motion
for summary judgment (filing 70). Based on the essentially undisputed
material facts, the Court finds that the defendants are entitled to summary
judgment, and will grant their motion. With the exception of some
evidentiary arguments addressed below, that will moot the parties'
remaining motions and result in a final judgment for the defendants.
The plaintiff, Simone Cribbs, asserts claims under the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Nebraska
Consumer Protection Act (NCPA), Neb. Rev. Stat. § 59-1601 et seq., for the
defendants' conduct in collecting a debt. See filing 1.
The plaintiff incurred medical debts in 2012 and 2013. Filing 71 at 2.1
Those bills went unpaid and defendant Accredited Collection Services (ACS)
retained defendant Brumbaugh and Quandahl, P.C. (B&Q), to pursue legal
action against the plaintiff. Filing 71 at 2. B&Q sent a demand letter, but
received no response. Filing 71 at 2. So, on May 27, 2015, B&Q filed suit in
state district court on behalf of ACS. Filing 71 at 2. The plaintiff was served
on June 1. Filing 71 at 2.
The plaintiff did not appear or defend in state court. Filing 71 at 2. But
she did call B&Q on June 10, 2015, and leave a message for Matthew Barnes,
a legal assistant at B&Q. Filing 71 at 2; see filing 71-2. Barnes returned her
call the same day, and a recording of the conversation is in evidence. Filing
71-11, Exh. A. Barnes told the plaintiff that only way to stop the lawsuit was
to pay her debt in full, that ACS would want to pursue a judgment if the debt
was not paid, and that once the debt was paid B&Q would file a satisfaction
of judgment. Filing 71-11, Exh. A; see filing 71 at 3. The plaintiff agreed to
make 6 monthly payments of $65 each to satisfy the debt. Filing 71 at 3. The
plaintiff also asked questions about the pending court case, to which Barnes
responded by repeatedly telling the plaintiff that her legal questions would
have to be directed to her own attorney. Filing 71-11, Exh. A.
Barnes promised, during the telephone call, to send the plaintiff a
letter detailing the payment plan. Filing 71 at 3. So, B&Q sent the plaintiff a
letter dated June 10, 2015, with the following body text:
Per our discussion, you have agreed to make payments on the
above referenced file in the amount of $65.00 beginning 19th of
June, 2015, and continuing monthly on or before the 19th day of
each month. Please send your payments to our office on or before
the due date. Our office will not send out reminder notices.
Filing 31-2 at 3. The letter also contained payment instructions. Filing 31-2
at 3. The plaintiff made the first payment. See filing 71 at 3.
On July 2, 2015, Barnes reviewed the plaintiff's file and noted that she
had still not appeared or defended in state court. Filing 71 at 3. So, he
prepared a motion for default judgment. Filing 71 at 3. The same day, a letter
Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1).
was sent to the plaintiff setting forth the remaining balance, reminding her of
the payment instructions, and stating: "This matter can still be resolved
cordially." Filing 31-2 at 4. On July 7, the motion for default judgment was
filed, and on July 8, default judgment was entered. Filing 71 at 3.
Cribbs did not respond to the July 2 letter; instead, she filed this case.
Filing 71 at 3; filing 1. Nonetheless, she continued to make the agreed-upon
payments, and on April 5, 2016, B&Q filed a satisfaction of judgment in the
state court case. Filing 71 at 3.
The plaintiff's initial complaint was premised on the theory that the
defendants violated the FDCPA by suing her, despite the fact that she was
making payments. See filing 1. Both defendants answered that complaint.
Filing 10; filing 11. The plaintiff later filed an amended complaint alleging
the sequence of events set forth above—that is, that the lawsuit preceded the
June 10 and July 2, 2015 letters. Filing 16. Neither defendant answered that
complaint. The plaintiff moved for partial summary judgment. Filing 29.
The defendants opposed summary judgment. Filing 34. The plaintiff
filed a motion to strike (filing 44) some of the defendants' evidence and
argument in opposition to summary judgment, contending in part that the
defendants waived certain arguments by not answering the plaintiff's
amended complaint. See filing 45. (As will be explained below, the motion to
strike was wholly unnecessary, because it was a vehicle for objecting to and
arguing against the defendants' opposition to summary judgment: the
arguments it presented should have simply been asserted in the summary
At that point, the defendants noticed that the plaintiff's amended
complaint (filing 16) had been filed out of time, and without leave of the
Court. See Fed. R. Civ. P. 15(a). The defendants moved to strike the amended
complaint, filing 49, and the Magistrate Judge granted that motion, filing 52.
So, the operative pleadings were (and are) filing 1, filing 10, and filing 11. See
filing 52. The plaintiff moved to reconsider that order, in part arguing for
leave to file an amended complaint. Filing 53. The Magistrate Judge ordered
the defendants to respond to the motion to reconsider if they opposed leave to
amend. Filing 55. They did. Filing 58. And then, they filed their own motion
for summary judgment. Filing 70.
Apparently unsatisfied with one unnecessary motion to strike, the
plaintiff filed a separate motion reasserting her earlier motion to strike.
Filing 79. Not to be outdone, the defendants filed an unnecessary motion to
strike some of the plaintiff's evidence opposing summary judgment (filing 81),
and interposed an objection (filing 84) to the plaintiff's motion to reassert her
motion to strike. (The objection was contrary to the Court's local rules. See
NECivR 7.1(b)(1)(A).) This is the rat king the Court must now disentangle.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
As alluded to above, the Court will use the defendants' motion for
summary judgment (filing 70) as its primary vehicle for disposing of this case.
But as a preliminary matter, the Court must address those aspects of the
plaintiff's motion to strike necessary to establish the scope of the record.
The plaintiff's motion to strike (filing 44) implicates evidentiary issues
that are relevant to the evidence supporting the defendants' motion for
summary judgment. But the plaintiff's objections miss the mark.
On summary judgment, a party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be
admissible in evidence. Rule 56(c)(2). "There is no need to make a separate
motion to strike." Rule 56 advisory committee's note; see Cutting Underwater
Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012).
And when an objection is made, the burden is on the proponent of the
evidence to show that the material is admissible as presented or to explain
the admissible form that is anticipated. Rule 56 advisory committee's note.
The standard at the summary judgment stage is not whether the evidence
offered would be admissible at trial, "it is whether it could be presented at
trial in an admissible form." See, Rule 56(c)(2); Gannon Int'l, Ltd. v. Blocker,
684 F.3d 785, 793 (8th Cir. 2012).
For the most part, the plaintiff does not even attempt to argue that the
defendants' evidence could not be presented in an admissible form at trial;
accordingly, those objections are without merit. See Gannon Int'l, 684 F.3d at
793. And the plaintiff's arguments premised on the defendants' alleged
failure to answer have been mooted by the Magistrate Judge's order striking
the plaintiff's amended complaint.
The issue that does require more discussion is the plaintiff's oftreiterated contention that the June 10, 2015 telephone call is inadmissible
parol evidence. That argument is without merit, for several reasons.
First, the parol evidence rule does not apply here: this is not an action
on a contract. The parol evidence rule states that if negotiations between the
parties result in an integrated agreement which is reduced to writing, then,
in the absence of fraud, mistake, or ambiguity, the written agreement is the
only competent evidence of the contract between them. Podraza v. New
Century Physicians of Nebraska, LLC, 789 N.W.2d 260, 266 (Neb. 2010).2
This rule gives legal effect to the contracting parties' intention to make their
writing a complete expression of the agreement that they reached, to the
exclusion of all prior or contemporaneous negotiations. Id. The June 10, 2015
letter is not a contract, and does not purport to be a contract. No one is trying
to enforce it as if it were a contract: there is no breach of contract claim.
Instead, the claim presented here is based on the defendants' conduct,
and the June 10, 2015 telephone call clearly bears on that claim. The
plaintiff's burden is to prove that the defendants' conduct was false,
deceptive, or misleading; she cannot do that by arbitrarily drawing a line
The plaintiff cites Nebraska law in support of her parol evidence argument. See filing 77
at 25-26. The Court does not believe that state contract law is applicable to this aspect of
the plaintiff's federal law claim, but does not need to answer that question to dispose of the
between oral and written communication.3 And even if the parol evidence
rule was somehow applicable, it would not be violated by evidence of the
telephone call, because the June 10, 2015 letter plainly was not intended to
be a complete expression of the parties' agreement: it begins, "[p]er our
discussion," and sets forth only the plaintiff's obligations pursuant to that
discussion. The defendants are not offering the evidence to vary the terms of
the agreement—they are offering the evidence to provide the context
necessary to understand what the letter was meant to be a record of.
Simply put, the parol evidence rule does not preclude considering
communication between a debt collector and a consumer when determining
whether a subsequent communication was false, deceptive, or misleading
within the meaning of the FDCPA. The Court finds no merit to the plaintiff's
motion to strike.
The FDCPA generally provides that a debt collector may not use any
false, deceptive, or misleading representation or means in connection with
the collection of any debt. § 1692(e). More specifically, the FDCPA provides
that conduct violating the act includes:
falsely representing the character, amount, or legal status of
threatening to take any action that cannot legally be taken or
that is not intended to be taken;
using a false representation or deceptive means to collect or
attempt to collect any debt or to obtain information concerning
a consumer; and
collecting an amount not authorized by the agreement
creating the debt or permitted by law.
See, §§ 1692e(2)(A), (5), (10) & 1692(f)(1); see also, filing 1 at 4; filing 53-1 at
5; filing 77 at 27. The plaintiff asserts those subsections in her briefing, see
filing 77 at 27, but does not appear to focus her argument on any subsection
in particular. See filing 77. The Court views the plaintiff's argument as
And, the Court notes that despite her parol evidence argument, the plaintiff's case in large
measure depends on the telephone call as well: without it, there are no representations in
the written communications that could be understood in any way as promising to refrain
from seeking a default judgment.
framed under § 1692e generally.4 See Peters v. Gen. Serv. Bureau, 277 F.3d
1051, 1055 (8th Cir. 2002).
Whether a communication is false, deceptive, or misleading is
considered from the perspective of an "unsophisticated consumer." Haney v.
Portfolio Recovery Assocs., L.L.C., 837 F.3d 918, 924 (8th Cir. 2016). This
standard is designed to protect consumers of below average sophistication or
intelligence without having the standard tied to the very last rung on the
sophistication ladder. Id. The unsophisticated consumer standard protects
the uninformed or naive consumer, yet also contains an objective element of
reasonableness to protect debt collectors from liability for peculiar
interpretations of collection letters. Id.
The plaintiff's argument is that the letters of June 10 and July 2, 2015
were false, deceptive, or misleading: she argues that the telephone call "is
irrelevant and should not be considered in connection with the June 10
letter."5 Filing 77 at 23; see filing 77 at 3. As implied above, the Court finds
no merit to this argument. The plaintiff's position seems to be that the June
10 letter was confusing because of its silence regarding the subject of a
potential default judgment, but that subject was plainly discussed between
the parties on the same day. It is hard for the Court to see how to evaluate
whether a letter referencing an earlier telephone call was "misleading"
without considering the contents of the telephone call. The FDCPA itself
recognizes that communication between a debt collector and a consumer does
not take place in a vacuum—the act imposes specific requirements on the
initial communication between a debt collector and a consumer that are not
imposed on every subsequent communication. See § 1692e(11). Whether a
particular communication was misleading cannot be wholly separated from
the defendants' entire course of conduct.
The plaintiff also argues that the telephone call, if considered, supports
her case. Filing 77 at 20-21. Specifically, the plaintiff argues that
"[d]efendants' excerpts of the call prove that at no time did B & Q fully inform
[the plaintiff of] her legal options and how and when a judgment would be
taken, despite her making payments." Filing 77 at 21. The Court's review of
For the sake of completeness, the Court also notes that the record does not support a claim
pursuant to § 1692e(2)(A) or (5), or § 1692(f)(1): there is nothing to suggest that the
defendants falsely represented the debt or threatened to take action they legally could not,
and the plaintiff's theory is not premised on any over-collection.
The Court does not understand the plaintiff to be claiming that the default judgment itself
was an FDCPA violation. Whether statements to a court are actionable under the FDCPA
is an unsettled question. See, Haney, 837 F.3d at 933; Hemmingsen v. Messerli & Kramer,
P.A., 674 F.3d 814, 818 (8th Cir. 2012); Mayhall v. Berman & Rabin, P.A., No. 4:13-CV-175,
2014 WL 340215, at *5 (E.D. Mo. Jan. 30, 2014).
the telephone call does not support that assertion: the plaintiff was expressly
told that "[t]he only way to stop the lawsuit's by paying this in full." Filing
71-11, Exh. A. The record is simply inconsistent with the plaintiff's core
assertion that she was never informed that a judgment would be taken.
The plaintiff also contends that the July 2, 2015 letter was misleading.
The plaintiff's primary focus is the suggestion that the matter "can still be
resolved cordially." Filing 31-2 at 4. The plaintiff points out that the letter
does not advise how much time she had to work things out "cordially," and
does not mention the possibility of a default judgment. 6 Filing 77 at 26. But it
is not clear how the FDCPA imposed such an obligation on the defendants.
The plaintiff was expressly informed that the only way to stop B&Q from
pursuing a judgment on ACS's behalf was to pay the debt in full. Filing 71-11,
Exh. A. Nothing in the June 10 or July 2 letters contradicted that
advisement. See filing 31-2 at 3-4. There is nothing in the record to suggest
that the defendants acted to lull the plaintiff into not filing an answer before
moving for default judgment. Compare, e.g., Morrison v. Hosto, Buchan,
Prater & Lawrence, 2009 WL 3010917, at *3 (E.D. Ark. 2009), with In re
Humes, 468 B.R. 346, 354 (Bankr. E.D. Ark. 2011), and Karr v. Med-1 Sols.,
LLC, No. 1:12-CV-1182, 2014 WL 1870928, at *6 (S.D. Ind. May 7, 2014).
And even if the Court accepts the plaintiff's general proposition that
consumers enter into payment plans in order to avoid having a judgment
entered against them, and that an unsophisticated consumer might believe
that making installment payments would prevent further legal action—that
is not what happened here. The plaintiff was advised when she made the
payment arrangements that ACS would want B&Q to pursue a judgment and
only full payment would prevent it. The promise that B&Q made was to
satisfy that judgment when all the arranged payments were made, and B&Q
kept that promise.
To be clear—the Court has no basis to doubt that the plaintiff was
genuinely confused. She avers that she "was confused and did not understand
that a judgment would be taken even with the payment plan or [she] would
have chosen to defend and file a response to the lawsuit." Filing 78-3. But
even accepting that as true, it is beside the point, because FDCPA violations
are analyzed objectively. See Adams v. J.C. Christensen & Assocs., Inc., 777
F. Supp. 2d 1193, 1197 (D. Minn. 2011). A plaintiff may pursue a claim for an
FDCPA violation even if she was not actually confused by a debt collector, but
The plaintiff also asserts other alleged deficiencies in the July 2 letter, such as vagueness
about whether interest was accruing, and the lack of a deadline for default on the payment
plan. Filing 77 at 26. The Court does not address these arguments, because they are
encompassed by neither the operative complaint nor the plaintiff's proposed amended
complaint. See, filing 1; filing 53-1.
the converse is also true: a plaintiff who was actually confused does not
automatically have a claim. See id. What matters is whether the debt
collector's conduct, when viewed objectively, violated the statute. Id. And
viewed objectively, the defendants' conduct was not misleading, even to an
unsophisticated consumer. The June 10, 2015 telephone call explained the
defendants' position to the plaintiff in clear terms. The only thing that the
plaintiff can really say about the June 10 and July 2 letters to make them
"misleading" is that they do not repeat the information that the plaintiff had
already been given. The Court can find no basis in the FDCPA for requiring a
debt collector to repeat information that was already provided to the
consumer and not contradicted.
In sum, the Court finds that when the June 10 and July 2, 2015 letters
are considered, in the context of the June 10 telephone call, there is no
FDCPA violation. That claim will be dismissed.
The plaintiff's NCPA claim also fails, for two reasons. First, the NCPA
claim is premised entirely on the alleged FDCPA violation, filing 77 at 44-47,
and fails for the same reasons. Second, the ambit of the NCPA is limited to
"unfair or deceptive acts or practices that affect the public interest." Nelson v.
Lusterstone Surfacing Co., 605 N.W.2d 136, 141 (Neb. 2000); see also, Eicher
v. Mid Am. Fin. Inv. Corp., 748 N.W.2d 1, 12 (Neb. 2008); Arthur v. Microsoft
Corp., 676 N.W.2d 29, 36 (Neb. 2004). The NCPA is not available to address a
private wrong where the public interest is unaffected. Nelson, 605 N.W.2d at
142; see, Eicher, 748 N.W.2d at 12; Arthur, 676 N.W.2d at 37. Specifically, the
conduct at issue must directly or indirectly affect the people of Nebraska.
Arthur, 676 N.W.2d at 37-38.
In other words, an NCPA claim requires a showing that not just one,
but many Nebraska citizens are affected by a defendant's practices. See,
Eicher, 748 N.W.2d at 12; Arthur, 676 N.W.2d at 38. The plaintiff has not
made that showing here.
That leaves just a few matters to clean up. First, the Court will deny
the plaintiff's motion to reconsider (filing 53)—that is, the plaintiff's request
for leave to file an amended complaint—as futile. The Court has concluded
that the essentially undisputed facts do not establish an FDCPA violation,
and nothing in the plaintiff's proposed amended complaint (filing 53-1) would
change that. In addition, the plaintiff's motion for summary judgment (filing
29) will obviously also be denied.
Next, the defendants' motion to strike (filing 81) will be denied. While
the Court understands the defendants' concerns about the affidavit from
plaintiff's counsel (filing 78-1), the Court's resolution of the merits of this
dispute has mooted the defendants' motion to strike. The defendants'
objection (filing 84) to the plaintiff's motion to strike (filing 44) is also moot.
Finally, the Court notes that both parties have argued, repeatedly and
at length, about who has been litigating in bad faith and who ought or ought
not be sanctioned. See, filing 34 at 11; filing 45 at 10-15; filing 48 at 20-25;
filing 56 at 9-14; filing 58 at 4, 7-10; filing 60 at 4; filing 71 at 29-35; filing 77
at 49-59; filing 83 at 27-33. Sanctions are, however, the one thing that the
parties do not seem to have a pending motion for. Nor is it clear why the
parties felt it necessary to engage on the subject so vociferously before a
determination on the merits was made, given that the sort of sanctions the
parties are discussing are generally sought after judgment pursuant to Fed.
R. Civ. P. 54(d). So, the Court declines to rule on any request for sanctions in
the absence of a post-judgment motion.7
IT IS ORDERED:
The defendants' motion for summary judgment (filing 70) is
The plaintiff's motion for summary judgment (filing 29) is
The plaintiff's motion to strike (filing 44) is denied.
The plaintiff's motion to reconsider (filing 53) is denied as
The plaintiff's motion to reassert (filing 79) is denied.
The defendants' motion to strike (filing 81) is denied as
The defendants' objection (filing 84) is denied as moot.
To be clear: this should not, in any way, be construed as encouraging the filing of such a
motion. In light of the public policy objectives of the FDCPA, it has been held that §
1692k(a)(3) should be construed narrowly so as not to discourage private litigation under
the FDCPA. See Mayhall v. Berman & Rabin, P.A., 13 F. Supp. 3d 978, 982 (E.D. Mo. 2014)
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The plaintiff's complaint is dismissed.
A separate judgment will be entered.
Dated this 27th day of March, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
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