United States District Court, D. Nebraska
TRISHA ROBINSON, on behalf of herself and all others similarly situated; Plaintiff,
ACCELERATED RECEIVABLES SOLUTIONS A.R.S., INC., and DAVID W. BROSTROM, Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion for Judgment on the
Pleadings, ECF No. 37, filed by Defendants Accelerated
Receivables Solutions, Inc. (ARS), and David Brostrom. For
the reasons stated below, the motion will be granted.
September 20, 2016, ARS filed a complaint (County Court
Complaint) in the County Court of Thayer County, Nebraska.
ECF No. 1-1. The County Court Complaint, a standard form used
by ARS, see Compl. ¶ 20-21, ECF No. 1, Page ID
6, alleged fifteen causes of action against Plaintiff Trisha
Robinson for unpaid medical debts, assigned to ARS from
Thayer County Health Services. In total, ARS sought
“$3, 692.85 in principal, $257.39 in interest and/or
check fees, costs of this action, and a reasonable
attorney's fee and post judgment interest as provided by
statute.” ECF No. 1-1. Page ID 17.
February 23, 2017, Robinson filed this action against ARS on
behalf of herself and a class of similarly situated persons,
alleging violations of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq. (FDCPA), and the
Nebraska Consumer Protection Act, Neb. Rev. Stat. §
59-1601 et seq. (NCPA). Specifically, Robinson
alleged that ARS was liable for “deceptive acts or
practices” under Neb. Rev. Stat. § 59-1602,
“miscast[ing] the cause of action is [sic] for
‘services and supplies' for the purpose of availing
Defendants of attorney's fees and interest pursuant [to]
Neb. Rev. Stat. § 25-1801, when in fact Defendants do
not meet the statutory requirements, ” Compl. ¶
22, ECF No. 1, Page ID 6, and “seek[ing] . . . sums in
addition to principal, including prejudgment interest and
statutory attorney fees even though their standard collection
complaints do not meet the requirements for being awarded
either attorney fees or prejudgment interest, ”
id. ¶ 23.
Rev. Stat. § 25-1801 states:
Any . . . corporation in this state having a claim which
amounts to four thousand dollars or less against any person .
. . doing business in this state for . . . services rendered
[or] material furnished . . . may present the same to such
person . . . for payment in any county where suit may be
instituted for the collection of the same. If, at the
expiration of ninety days after the presentation of such
claim, the same has not been paid or satisfied, [the
corporation] may institute suit thereon in the proper court.
. . . If [the corporation] establishes the claim and secures
judgment thereon, [the corporation] shall be entitled to
recover the full amount of such judgment and all costs of
suit thereon, and, in addition thereto, interest on the
amount of the claim at the rate of six percent per annum from
the date of presentation thereof, and, if [the corporation]
has an attorney employed in the case, an amount for
attorney's fees as provided in this section. . . .
also alleged that “Defendants' routine practices of
collecting unauthorized charges violates the FDCPA by seeking
and collecting amounts, including interest, fees and costs,
which are not permitted by law in violation of 15 U.S.C.
§1692f and 1692f(1).” Compl. ¶ 24, ECF No. 1,
Page ID 7.
filed the current motion, seeking judgment in their favor on
the grounds that they could not have violated the FDCPA or
NCPA because they were permitted “to seek attorney fees
and pre-judgment interest when collecting debts as an
assignee of a health care provider that provided medical
services and supplies to the consumer” and “to
seek and recover attorney fees for services performed by
attorneys employed as in-house counsel and appearing as
counsel of record when attempting to collect debts arising
from medical services and supplies provided by
Defendants' assignor.” ECF No. 37, Page ID 90-91.
Defendants alternatively sought the certification of several
questions of law to the Nebraska Supreme Court. Id.,
Page ID 91-92.
on the pleadings is appropriate where no material issue of
fact remains to be resolved and the movant is entitled to
judgment as a matter of law.” Minch Family LLLP v.
Buffalo-Red River Watershed Dist., 628 F.3d 960, 965
(8th Cir. 2010) (citing Faibisch v. Univ. of Minn.,
304 F.3d 797, 803 (8th Cir. 2002)). This is “the same
standard used to address a motion to dismiss for failure to
state a claim under Rule 12(b)(6).” Ashley Cnty.,
Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
“To survive a motion to dismiss, the factual
allegations in a complaint, assumed true, must suffice
‘to state a claim to relief that is plausible on its
face.'” Northstar Indus., Inc. v. Merrill Lynch
& Co., 576 F.3d 827, 832 (8th Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
Claims for Services Rendered versus Claims on Accounts under
motion, ARS argues that Robinson's claims fail because
ARS's County Court Complaint was for “services
rendered” and qualifies for prejudgment interest and
attorney's fees under § 25-1801. Robinson argues
that the County Court Complaint represents a claim on an
“account” and as such doesn't qualify under
§ 25-1801. For support, Robinson relies on Powers v.
Credit Mgmt. Servs., Inc., No. 8:11CV436, 2016 WL
612251, at *1 (D. Neb. Feb. 2, 2016). In Powers, the
defendants were a debt collecting corporation (CMS) and two
of its employees, including an in-house attorney. CMS filed
claims in Nebraska county court, using standard-form
complaints, seeking payment for medical services debts it
purchased from a medical care provider. CMS's
standard-form complaint stated that the medical provider
“provided goods, services and/or labor to ...