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Rojo v. Watson

United States District Court, D. Nebraska

September 27, 2016

ANGELA M. ROJO, Plaintiff,
JERRY WATSON, et al ., Defendants.


          John M. Gerrard United States District Judge.

         The plaintiff, Angela Rojo, is suing Hall County Sheriff Jerry Watson, Hall County Sheriff's Deputy David Waskowiak, and Brumbaugh & Quandahl, PC, LLO, for violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et. seq. This matter is before the Court on Watson's and Waskowiak's motions to dismiss. Filing 13; filing 14. For the reasons explained below, the defendants' motions will be granted.


         Briefly summarized, Rojo's allegations are as follows. In 2009, Brumbaugh & Quandahl sued Rojo seeking payment of a past-due debt. Filing 1 at 2. Brumbaugh & Quandahl obtained default judgment against Rojo and, in an attempt to collect on the judgment, filed a praecipe of writ of execution.[1] Filing 1 at 3. The writ instructed the sheriffs to execute on any and all of Rojo's personal property, and to "provide employment and banking information upon return of the execution." Filing 1 at 3. Waskowiak, acting on the writ, made two separate visits to Rojo's residence-the first on February 18, 2015, and the second on March 2. Filing 1 at 3-4.

         Rojo claims that Waskowiak (and Watson, acting through Waskowiak) acted improperly in several respects. She claims that Waskowiak, in serving the writ on February 18, threatened to seize her vehicle, and demanded that she reveal banking and employment information. Filing 1 at 3-4. She also claims that Waskowiak told her that she was required to enter into a payment plan, and that he would return every 2 weeks to collect payments. Filing 1 at 4. Responding to these commands, Rojo borrowed $30.00 from her mother, which she provided to Waskowiak as payment toward the judgment. Filing 1 at 4. Waskowiak allegedly took $22.82 of the $30.00 as a collection fee, applying the remaining balance toward the judgment. Filing 1 at 4.

         Following her encounter with Waskowiak, Rojo filed a claim of exemption in the Hall County Court, exempting all of her personal property from execution. Filing 1 at 4. Notice of Rojo's claim was served on Watson. Filing 1 at 4. Notwithstanding this filing, Rojo claims that Waskowiak returned to her residence on March 2, seeking another $30.00 payment. Filing 1 at 3-4. Rojo informed Waskowiak that she had obtained counsel, to which Waskowiak replied, "Why do you need a lawyer?" Filing 1 at 5. Following these events, Rojo's counsel contacted Hall County officials to express concern about the sheriff's collections practices. Waskowiak allegedly informed Rojo's attorney that he had done nothing wrong, and that he would not make any changes to his routine. Filing 1 at 5. Rojo sued Watson, Waskowiak, and Brumbaugh & Quandahl under the FDCPA. Filing 1 at 8-9. Watson and Waskowiak move to dismiss Rojo's claim pursuant to Fed.R.Civ.P. 12(b)(6).


         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. While the court must accept as true all facts pleaded by the nonmoving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678. Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. at 679.


         Rojo alleges that Watson and Waskowiak exceeded their statutory authority in serving the writ of execution. She claims, in part, that Waskowiak improperly questioned her regarding banking and employment information, and her need for counsel, and that he threatened to seize her car without first providing her a copy of the possible claim of exemptions. She also claims that Waskowiak charged a fee for serving the writ of execution, made reference to a nonexistent payment plan, and sought to collect on the judgment even after her claim of exemption. This conduct, Rojo contends, violates the FDCPA.

         As a preliminary matter, Rojo acknowledges that, under Nebraska law, execution is an administrative process-a clerk of the court issues the writ and directs it to the sheriff of the county. Neb. Rev. Stat. § 25-1501. See Fox v. Whitbeck, 835 N.W.2d 638, 642 (Neb. 2013). She also recognizes that sheriffs, acting pursuant to a writ, may seize a debtor's property, and that such property may be sold to satisfy the judgment. Neb. Rev. Stat. § 25-1516. She argues, however, that Waskowiak and Watson overlooked or ignored certain statutory commands that limit sheriffs' authority in serving a writ of execution. She specifically points to Neb. Rev. Stat. § 33-119, which restricts the availability of fees associated with service of process, and § 25-1516, which requires the writ of execution to include a notice of exemptions form setting forth certain rights of the judgment debtor.

         It is not entirely clear at this stage how, or to what extent, Watson and Waskowiak exceeded their statutory authority under state law. But, for the purposes of this Memorandum and Order, the Court will assume without deciding that the actions alleged were not authorized under Nebraska's writ of execution statutes. (That is, as will be addressed below, not a matter that should be finally determined by a federal court.) The next question, then, is whether such conduct is actionable under the FDCPA. The Court finds that it is not.

         Congress enacted the FDCPA to eliminate abusive debt collection practices, to ensure that debt collectors who abstain from such practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, 559 U.S. 573, 577 (2010) (citing 15 U.S.C. § 1962(e)). To this end, the Act prohibits debt collectors from using "false, deceptive, or misleading representation[s] or means in connection with the collection of any debt." 15 U.S.C. § 1692e. However, for liability to attach under the FDCPA, the defendant must be a "debt collector, " which the Act defines as "'any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another.'" Sheriff v. Gillie, 136 S.Ct. 1594, 1598 (2016) (quoting 15 U.S.C. § 1692(e)).

         Watson and Waskowiak argue that they are not "debt collectors, " and therefore cannot be held liable for the alleged violation. This argument finds support in the "government employee" exception, which removes from the definition of debt collector "any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties." 15 U.S.C. § 1692a(6)(C). "State" is defined broadly to include "any State, territory, or possession of the United States, the District of Columbia . . . or any political subdivision of any of the ...

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