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Capital One Bank (USA), N.A. v. Lehmann

Court of Appeals of Nebraska

September 22, 2015

CAPITAL ONE BANK (USA ), N.A., APPELLEE AND CROSS-APPELLANT,
v.
NELSEENA J. LEHMANN, APPELLANT AND CROSS-APPELLEE

Page 918

Appeal from the District Court for Red Willow County, DAVID URBOM, Judge, on appeal thereto from the County Court for Red Willow County, ANNE PAINE, Judge.

Bert E. Blackwell for appellant.

Karl von Oldenburg, of Brumbaugh & Quandahl, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

OPINION

Page 919

[23 Neb.App. 293] Bishop, Judge.

Capital One Bank (USA), N.A. (Capital One), obtained a default judgment against Nelseena J. Lehmann for unpaid credit card charges. Several years later, Lehmann filed a " Motion of Special Appearance" and claimed that the county court lacked personal jurisdiction over her when it entered the default judgment; in her affidavit, Lehmann averred that the certified mail containing the complaint was signed for by her estranged husband, who did not inform her of the lawsuit. The county court for Red Willow County determined that notice by certified mail, signed for by Lehmann's husband, was sufficient notice to enter default judgment. The county court further determined that Lehmann did not use the appropriate procedure to vacate a default judgment. The county court denied Lehmann's motion for " special appearance." On appeal, [23 Neb.App. 294] the district court for Red Willow County affirmed. We affirm, but for different reasons.

BACKGROUND

Capital One filed a complaint in county court, case No. CI 09-685, alleging that Lehmann failed to make payments on a credit card account and owed Capital One $2,942.37 as of November 23, 2009, plus accrued and accruing interest. The " Service

Page 920

Return" shows that the complaint was sent via certified mail to Lehmann at an address in McCook, Nebraska. Because the file stamps on various pleadings in the transcript are difficult to read, we rely on the undisputed factual findings of the Red Willow County Court, which were as follows:

The pleadings show that the Complaint was filed on November 30, 2009[,] and a Service Return was filed with the Court on December 24, 2009, showing a certified mail proof [of] service with receipt signed by Kurt Lehmann on December 7, 2009. A Motion and Affidavit for Default Judgment was filed February 1, 2010[,] and the Court entered Default Judgment against [Lehmann] on February 10, 2010.

Capital One thereafter began garnishment proceedings in case No. CI 09-685. In November 2013, Capital One filed an " Affidavit and Praecipe for Summons in Garnishment After Judgment," asking the clerk of the Red Willow County Court to issue summons in garnishment upon Lehmann Saddle Company in McCook, upon the belief that the company had property of and was indebted to Lehmann, the judgment debtor. A " Summons and Order of Garnishment in Aid of Execution" was sent to Lehmann Saddle Company via certified mail on that same date. Similar affidavits, as well as summons and orders of garnishment, were filed and sent in January 2014 (to a bank in Omaha, Nebraska,) and May 2014 (to a bank in McCook). It does not appear that Capital One was successful in its garnishment attempts.

[23 Neb.App. 295] On June 27, 2014, Lehmann filed a " Motion of Special Appearance" in case No. CI 09-685 stating:

Without waiving her objection to the jurisdiction of this Court, or this person, . . . Lehmann, says:
1. During all times relevant to the allegation in [Capital One's] Petition, . . . Lehmann was a resident and citizen of the State of Oklahoma, having moved to Blackwell, Oklahoma[,] on September 30, 2009[,] and not returning to Danbury, Nebraska[,] until June 1, 2011, and this Court had no jurisdiction over her person. By this motion, [Lehmann] specifically preserves and reasserts her special appearance herein, and does not waive her right to object and raise the issue of the jurisdiction of this Court over her person.
2. Subjecting [Lehmann] to the jurisdiction of this court is a denial of due process of law and equal protection of the laws in violation of the Constitution of the United States of America and the Constitution of the State of Nebraska.
WHEREFORE, . . . Lehmann, requests that her special appearance be sustained.

Also on June 27, 2014, Lehmann filed an affidavit, wherein she stated:

1. Affiant states that she is the defendant in the above ...

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