United States District Court, D. Nebraska
ANGELA M. ROJO, Plaintiff,
JERRY WATSON, et al ., Defendants.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
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
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. 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.
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.
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).
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.
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.
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.
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.
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.
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 ...