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Pflueger v. Credit Bureau Services, Inc.

United States District Court, D. Nebraska

October 22, 2018

AARON PFLUEGER, Plaintiff,
v.
CREDIT BUREAU SERVICES, INC. and AMANDA BARRON, Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE

         The plaintiff, Aaron Pflueger, brings this action pursuant to the Fair Debt Collection Practices Act, (FDCPA), 15 U.S.C. § 1692 et seq., alleging in pertinent part that the defendants violated the FDCPA by commencing a county court collection lawsuit in a Nebraska county where he did not reside. Filing 36 at 4. The defendants deny that the collection suit was commenced in the wrong venue, and claim that even if it was, the error was not intentional and resulted from a bona fide error notwithstanding reasonable procedures to avoid any such error. Filing 37 at 2-3. Pflueger moves for partial summary judgment regarding liability. The defendants move for summary judgment and dismissal of Pflueger's amended complaint based on their defenses. The Court will deny both motions.

         I. STANDARD OF REVIEW

         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).

         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. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). 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.

         II. BACKGROUND

         Around August 15, 2016, defendant Credit Bureau Services (CBS) received assignment of a debt Pflueger had incurred for services provided by the Seward Animal Hospital. See, filing 45-2 at 7. The amount of the debt was $895.26. See filing 45-2 at 16. CBS learned from the post office that as of August 15, Pflueger resided at 214 Oak Street, Louisville, Nebraska. Filing 45-1 at 1. On August 30, a CBS representative spoke with Pflueger by telephone and verified his address. Filing 45-1 at 2. Around September 7, CBS mailed a notice to Pflueger at the Louisville address. Filing 45-1 at 2. That mailing was returned on September 9 with an address correction notification that Pflueger's new mailing address was a post office box in Murdock, Nebraska. Filing 45-1 at 2. Around November 22, CBS mailed another notice to Pflueger's Murdock post office box. Filing 45-1 at 2. That notice was not returned as undeliverable or with an address change notification. Filing 45-1 at 2.

         On December 8, defendant Barron, acting as the attorney for CBS, requested information from the Murdock postmaster about Pflueger and the physical address of the boxholder of the post office box previously identified as belonging to Pflueger. Filing 45-1 at 2, 5. In response, the postmaster reported the boxholder's address was the same Louisville address CBS had sent a notice to in August-the notice that had been returned. Filing 45-1 at 2, 5. Murdock is a small village located approximately 13 miles southwest of Louisville. Both towns are in Cass County, Nebraska.

         Around December 23, Barron prepared a complaint and praecipe to be filed in Cass County Court regarding Pflueger's debt. Filing 45-1 at 3. On December 29, CBS sent the complaint and praecipe, along with a check for the filing fee, to the Cass County Court clerk. Filing 45-1 at 3. The complaint and praecipe were received by the clerk and file stamped January 4, 2017. Filing 45-1 at 3; filing 45-2 at 16. The praecipe for summons requested certified mail service at Pflueger's Louisville address-not Pflueger's post office box in Murdock. Filing 45-2 at 17. Not surprisingly, certified mail service was unsuccessful. Filing 45-2 at 20. The certified mail return receipt filed by Barron and file stamped January 20, 2017, had the notation "unable to forward," which would indicate that Pflueger no longer resided at the Louisville address. Filing 45-2 at 20.

         Barron filed a praecipe for alias summons on March 1, directing the Cass County Sheriff to obtain personal or residential service of Pflueger at the same Louisville address where mail had previously been returned and certified mail service was unsuccessful. Filing 45-2 at 22. In addition, the sheriff was directed to personally serve Pflueger at what was believed to be his place of employment. But the address provided for Pflueger's employment was the same as his home address in Louisville. Filing 45-2 at 22. Again, not surprisingly, the Sheriff was unable to perfect service of summons and copy of the defendants' complaint. The sheriff's service return reported that service failed because Pflueger had "moved away." Appendix A.[1]

         The defendants moved the county court for leave to obtain service by publication, and leave was granted on April 27, 2017. The affidavit of publication filed with the county court clerk on May 25 reports that notice of the defendant's lawsuit was published for three consecutive weeks between May 4 to May 18 in a Plattsmouth, Nebraska legal newspaper. Filing 45-2 at 25. Plattsmouth is the county seat for Cass County and is about 15 miles east of Louisville.

         Before May 8, 2017, CBS located a Wayne County, Nebraska, arrest warrant for Pflueger dated May 3, 2017. Filing 45-1 at 3, 9. The warrant reported a Gretna, Nebraska address for Pflueger. Filing 45-1 at 9. Gretna is in Sarpy County - a county adjoining Cass County to the north. On May 10, an attorney (not Barron) filed an "affidavit of mailing notice" with the Cass County Court clerk. The affidavit reported that Pflueger had been served notice at his Gretna address of the pending collection action first published in the Plattsmouth Journal on May 4. Appendix B. There is no indication Pflueger appeared or filed a pleading of any kind in the Cass County collection action.

         Barron moved the Cass County court for a default judgment on June 27. Filing 45-2 at 5. Barron's motion appeared to be a standard form and recited "the allegations contained in the complaint of the Plaintiff are true." Filing 45-2 at 5. The defendants' original filing was captioned "Complaint and Praecipe," and although the complaint did not report an address for Pflueger, the praecipe reported Pflueger's Louisville address. Filing 45-2 at 16-17. Barron mailed a copy of the motion for default judgment to Pflueger's Gretna address on that same day, June 27. Filing 45-2 at 6. Relying on Barron's representations regarding service of process and venue, the county court entered judgment for CBS on June 30, 2017. Filing 45-2 at 5.

         III. DISCUSSION

         1. PFLUEGER'S MOTION FOR ...


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