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Cribbs v. Accredited Collection Service, Inc.

United States District Court, D. Nebraska

March 27, 2017



          John M. Gerrard United States District Judge

         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 stops today.

         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. Seefiling 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; seefiling 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. Seefiling 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 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 judgment briefing.)

         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. SeeFed. 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.


         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 ...

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