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Spurgeon v. Frederick J. Hanna & Associates, P.C.

United States District Court, D. Nebraska

March 17, 2015

KAREN S. SPURGEON, On behalf of herself and all others similarly situated, Plaintiff,
v.
FREDERICK J. HANNA & ASSOCIATES, P.C., et al., Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

In her operative complaint (filing 8), the plaintiff, Karen S. Spurgeon, alleges that the defendants, Frederick J. Hanna & Associates, P.C.; Frederick J. Hanna; Joseph C. Cooling; and Robert A. Winter, sent her a letter which violated 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. Specifically, Spurgeon alleges that defendants falsely represented the communication was from an attorney, used false and deceptive means to collect or attempt to collect a debt, and attempted to charge fees and interest not allowed by law. Filing 8 at ¶¶ 30-31. Spurgeon also asks the Court to certify her suit as a class action under Fed.R.Civ.P. 23. Filing 9. Defendants have moved to dismiss Spurgeon's complaint, asserting that the letter complied with the FDCPA and NCPA. Filing 19. For the reasons set forth below, the Court will grant defendants' motion to dismiss, and will deny Spurgeon's motion to certify as moot.

I. BACKGROUND

Defendant Frederick J. Hanna & Associates, P.C. ("the Firm"), is a professional corporation with its principal office in Georgia. It engages in debt collection in Nebraska. Defendant Frederick J. Hanna is the Firm's president, principle owner, and an attorney at law. Defendants Joseph C. Cooling and Robert A. Winter, also attorneys, are managing partners and minority shareholders of the Firm. Filing 8 at ¶¶ 4-7.

Spurgeon bought a car from a local Kia dealership through an installment sales contract. The car was later damaged by a hail storm, determined to be a total loss, and was subsequently repossessed. Filing 8 at ¶¶ 8-9. This is apparently the source of the debt allegedly at issue in this case.

Spurgeon alleges that she received a debt collection letter from the Firm dated October 8, 2013. Filing 8 at ¶ 10. The letter, written on the Firm's letterhead, referenced the creditor as Santander Consumer, USA; the account and file numbers; and a balance of $4, 607.79. Filing 8-1. The remainder of the letter appears as follows:

Dear KAREN S. SPURGEON:

This communication is in reference to your delinquent account as shown above. Please contact our office to make arrangements to pay the unpaid balance.

Unless you notify this office within thirty (30) days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within thirty (30) days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a Judgment and mail you a copy of such Judgment or verification, or the name and address of the original creditor, if different from the current creditor.

This firm is licensed to practice law in Georgia, Florida, Missouri, and South Carolina, Although we are a law firm, no attorney has evaluated your case, nor have we been engaged to file a lawsuit. Further, no attorney with this firm has personally reviewed the particular circumstances of your account. This is an attempt to collect a debt. Any information will be used for that purpose.

HOURS OF OPERATION ARE: MONDAY-FRIDAY 8AM-9PM EST AND SATURDAY 9AM-1PM EST

Filing 8-1.

Spurgeon claims that this letter violates her rights as a debtor under the FDCPA and NCPA. Specifically, she alleges that defendants "falsely represent[ed] or impl[ied] that a communication was from an attorney... and (2) us[ed] [a] false representation or deceptive means to collect or attempt to collect any debt" in violation of 15 U.S.C. § 1692e(3) and e(10). Filing 8 at ¶ 30. Spurgeon further alleges defendants have wrongfully "attempt[ed] to charge fees and interest not allowed by law." Filing 8 at ¶ 31.

In addition to seeking remedies on behalf of herself, Spurgeon seeks the certification of two classes: (1) a class based on the alleged FDCPA violations and (2) a class based on the alleged NCPA violations. However, she has moved the Court to stay ...


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