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Robinson v. Accelerated Receivables Solutions (A.R.S.), Inc.

United States District Court, D. Nebraska

April 19, 2018

TRISHA ROBINSON, on behalf of herself and all others similarly situated; Plaintiff,
v.
ACCELERATED RECEIVABLES SOLUTIONS A.R.S., INC., and DAVID W. BROSTROM, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This 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.

         BACKGROUND

         On 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.

         On 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, [1] for “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.

         Neb. Rev. Stat. § 25-1801 states[2]:

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. . . .

         Robinson 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).[3]” Compl. ¶ 24, ECF No. 1, Page ID 7.

         Defendants 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.

         STANDARD OF REVIEW

         “Judgment 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 (2007)).

         DISCUSSION

         I. Claims for Services Rendered versus Claims on Accounts under § 25-1801

         In its 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 ‚Äúprovided goods, services and/or labor to ...


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