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8:13-cv-00124-LSC-FG3 Doc # 1 Filed: 04/17/13 Page 1 of 11 - Page ID # 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA










Plaintiff,








Sandra S. Mitchell,


v.


Brumbaugh & Quandahl, P.C. LLO and
West Asset Management, Inc.,



Defendants.




































Case No.

FOR JURY TRIAL

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) COMPLAINT AND DEMAND
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1.

COMPLAINT



Plaintiff, Sandra S. Mitchell (“Plaintiff”), brings this action to secure

redress for unlawful debt collection practices engaged in by Defendants in violation of

the Fair Debt Collection Practices Act, 15 U.S.C. §§1692 et seq. (“FDCPA”).

2.

Defendants obtained a Default Judgment against Plaintiff on March 26,

2009 in the County Court of Douglas County Nebraska and have been attempting to

garnish and seize property of the Plaintiff since that time.

3.

In December 2012, Plaintiff received information which led her to believe

that Defendants were attempting to levy her property and/or her wages to collect over

$4,000.00 from her on the judgment. Plaintiff talked to representatives of Defendant

Brumbaugh & Quandahl, P.C. LLO (hereinafter “Brumbaugh & Quandahl”) and was led

to believe they would not garnish her wages and that they would collect less than $400.00

to satisfy the judgment.

4.

Defendants continued to use the judicial process to garnish Plaintiff’s

wages, alleging that she owed over $1,700.00.



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5.

Both Defendant Brumbaugh & Quandahl and Plaintiff appeared in the

County Court of Douglas County Nebraska in February 2013 and agreed that the amount

owed by Plaintiff was less than $480.00, entering into an agreement that was reflected by

order of the Court. Defendant Brumbaugh & Quandahl continued to attempt to collect

amounts substantially greater than that agreed to by the parties and ordered by the County

Court of Douglas County Nebraska. The actions of Defendants in attempting to collect

substantially more than agreed to between the parties and authorized by court order were

in violation of the FDCPA.

JURISDICTION

6.

Jurisdiction of this Court arises under 15 U.S.C. §1692k(d) and 28 U.S.C.

§1331.

VENUE

7.

Venue is proper in this District because the acts and transactions occurred

here, Plaintiff resides here and Defendants transact business here.

PARTIES

8.

Plaintiff, Sandra S. Mitchell is a natural person residing in Douglas County,

Nebraska. Plaintiff is a “consumer” within the meaning of 15 U.S.C. §1692a(3).

9.

Defendant Brumbaugh & Quandahl is a business entity formed under the

laws of the state of Nebraska and is a law firm and “debt collector” as defined by 15 U.S.C.

§ 1692a(6).

10.

Defendant West Asset Management, Inc., (hereinafter “West”) is a collection

agency operating from an address of 7171 Mercy Rd, Omaha, Nebraska, and is a "debt

collector" as that term is defined by 15 U.S.C. § 1692a(6).



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11.

The acts of the Defendants alleged in this Complaint were performed by

their employees and/or agents, acting within the scope of actual or apparent authority.

12.

Defendants are all entities who contributed to or participated in, or

authorized, and/or implemented the policies and procedures regarding the acts complained

of or conspired with the named Defendants to commit the acts complained of which caused

injuries to the Plaintiff. Each Defendant acted as principal and agent, each of the other, and

combined and concurred each with the others in committing the acts complained of herein.

13.

At all times relevant hereto, each of the Defendants were, and are now, the

agent, servant, employee and/or other representative of the other Defendants and in doing

the things herein alleged, were acting within the scope, purpose and authority of such

agency, service, employment and/or other representative capacity with the permissions,

knowledge, consent and ratification of the other Defendants. Any reference hereinafter to

Defendants, without further qualification, is meant by Plaintiff to refer to each Defendant

named above.

FACTUAL ALLEGATIONS

14.

Plaintiff incurred a financial obligation to a medical provider that was

primarily for personal, family or household purposes, and is therefore a “debt” as that term

is defined by 15 U.S.C. § 1692a(5).

15.

Due to circumstances beyond her control, Plaintiff fell behind in her

obligation on this account and it went into default status with the original creditor.

16.

Sometime thereafter, the debt was consigned, placed or otherwise transferred

to a debt collector for collection.



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17.

Defendant Brumbaugh & Quandahl filed suit against Plaintiff in the County

Court of Douglas County, Nebraska, on or about August 27, 2008 (hereinafter “the

lawsuit”), alleging that “Worldwide Asset Purchasing II, LLC” had been assigned the debt

and was the named plaintiff in the Complaint. The Complaint alleged that Sandra S.

Mitchell owed $4,208.66.

18.

On or about November 26, 2008, Defendant Brumbaugh & Quandahl filed

an amended complaint against Plaintiff. The Amended Complaint was the same in all

aspects as the original Complaint, except that the named plaintiff in the suit was changed to

Defendant West. A copy of the Amended Complaint and Summons was never served on

Plaintiff.

JUDGMENT ENTERED AND CONFLICTING AMOUNTS SOUGHT TO BE

COLLECTED

19.

On or about March 26, 2009 the county court entered an order of default

judgment against Plaintiff, finding that Plaintiff owed $4,208.66 plus costs and post

judgment interest.

20.

Defendant Brumbaugh & Quandahl took no steps to collect on the

aforementioned judgment until filing an “Affidavit and Praecipe for Summons in

Garnishment After Judgment” on or about March 23, 2012. The aforementioned Praecipe

stated that Plaintiff owed $4,518.32 on the judgment and that the garnishee had property of

the Plaintiff which Defendants sought to garnish.

21.

On or about August 9, 2012, Defendant Brumbaugh & Quandahl caused to

be filed an “Affidavit and Praecipe for Summons in Garnishment After Judgment”. The



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aforementioned Praecipe stated that Plaintiff owed $1,678.12 on the judgment and that the

garnishee had property of the Plaintiff which Defendants sought to garnish.

PLAINTIFF DISPUTES AMOUNT OWED TO DEFENDANT

22.

On or about December 3, 2012, Plaintiff received information that indicated

that she owed over $4,000.00 to Defendant West regarding the lawsuit.

23.

Plaintiff called and spoke with a representative of Defendant Brumbaugh &

Quandahl on the telephone and asked for information regarding the original creditor

underlying the lawsuit. Plaintiff was informed that it was Alegent Health (hereinafter

“Alegent”), a health care provider located in Omaha, Nebraska.

24.

Plaintiff went to the offices of Alegent and obtained records showing that

Plaintiff owed Alegent a total of $338.00.

25.

Plaintiff went to the offices of Defendant Brumbaugh & Quandahl and

showed an employee of Defendant Brumbaugh & Quandahl the aforementioned records

and gave them copies. Plaintiff asked that they stop garnishing her wages and that they

update the court records to indicate that she owed $338.00. The employee of Defendant

Brumbaugh & Quandahl told Plaintiff that they could not remove or change the court

records regarding how much Plaintiff owed until talking to their client, but because Plaintiff

had provided proof of how much was owed, Defendant Brumbaugh & Quandahl would not

take further action against Plaintiff.

26.

Plaintiff gave Defendant Brumbaugh & Quandahl’s employee her current

residential address and phone number so that they could contact her to arrange payment

and/or to follow up on paying the remaining amount due on the lawsuit.



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DEFENDANTS’ FIRST ATTEMPT TO COLLECT MORE THAN WAS DUE

FROM PLAINTIFF

27.

On or about January 30, 2013, Defendants caused to be filed an “Affidavit

and Praecipe for Summons in Garnishment After Judgment”. The aforementioned Praecipe

stated that Plaintiff owed $1,760.83 on the judgment and that the garnishee, which was

Plaintiff’s employer, had property of the Plaintiff which Defendants sought to garnish.

28.

Defendants’ attempt to collect an amount which was over 8 (eight) times

more than the amount owed to Defendant’s client was a false, deceptive, misleading and

unfair act done in violation of the FDCPA, specifically a violation of 15 U.S.C. §§ 1692e,

1692e(2), 1692e(10), 1692f and 1692f(1).

DEFENDANT’S SECOND ATTEMPT TO COLLECT MORE THAN WAS DUE

FROM PLAINTIFF

29.

Defendants failed to notify the Douglas County Court of Plaintiff’s correct

address and therefore the notice of Defendants’ attempt to garnish her wages was not mailed

to her home.

30.

On or about February 9, 2013, Plaintiff received notice of Defendants’

attempt to garnish her wages in the amount of $1,760.83.

31.

Plaintiff went to Defendant Brumbaugh & Quandahl’s offices again and

asked to speak to someone regarding the lawsuit.

32.

Plaintiff told Defendant Brumbaugh & Quandahl’s employee that she had

been in earlier, in December 2012 and thought that Defendants were not going to garnish

her wages and that she owed approximately $340.00. Defendant Brumbaugh & Quandahl’s

representative told Plaintiff that she would need to talk to her supervisor.



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33.

The supervisor, another employee or representative of Defendant

Brumbaugh & Quandahl (hereinafter “the supervisor”) spoke to Plaintiff and told Plaintiff

that Defendants would continue attempt to collect $1,760.83 because Defendant West had

not authorized them to change the amount.

34.

Plaintiff told the supervisor that she had given Defendant proof that she only

owed approximately $340.00. The supervisor said he would have to check with Defendant

West to update the records. The supervisor left and came back and said that Defendant West

had changed the amount owed to $783.79.

35.

Plaintiff told the supervisor that was wrong, that she only owed

approximately $340.00. The supervisor told Plaintiff that the higher amount included court

costs and interest, which therefore raised the total amount owed to $783.79.

36.

The supervisor told Plaintiff that Defendant Brumbaugh & Quandahl,

despite its agreement not to garnish Plaintiff made in December 2012, would continue to

garnish her wages. The supervisor told Plaintiff that he would send a letter to Plaintiff’s

employer stating, “Our records show a balance of $783.79 remaining on the above stated

garnishment. Please withhold only this amount from the next payroll.” Defendant

Brumbaugh & Quandahl mailed a letter containing this statement to Plaintiff’s employer on

or about February 11, 2013.

37. While Plaintiff did owe Defendant West $338.00, Plaintiff did not owe court

costs or interest that would bring the total amount owed to $783.79.

38.

Defendants’ attempts to collect an amount which was over 2 (two) times

more than the amount owed to Defendant West was a false, deceptive, misleading and unfair



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act done in violation of the FDCPA, specifically a violation of 15 U.S.C. §§ 1692e,

1692e(2), 1692e(10), 1692f and 1692f(1).

DEFENDANTS’ THIRD ATTEMPT TO COLLECT MORE THAN WAS DUE

FROM PLAINTIFF

39.

Plaintiff filed a motion in the lawsuit disputing the amount she owed on or

about February 12, 2013. A hearing on Plaintiff’s motion was scheduled for February 20,

2013.

40.

At the hearing Plaintiff spoke to Karl Von Oldenburg, an attorney employed

by Defendant Brumbaugh & Quandahl who represented Defendant West in the lawsuit.

41.

Plaintiff and Mr. Von Oldenburg agreed that Plaintiff owed $338.00 and

court costs in the underlying lawsuit. Both parties agreed that court costs amounted to

$89.21. The court entered an order holding that the principal balance owed by Plaintiff was

$338.00 and with associated court costs the total amount owed as of February 20, 2013 was

$477.21.

42.

On or about March 4, 2013, an employee or agent of Defendant Brumbaugh

& Quandahl who identified herself as “Kristie” telephoned Plaintiff and attempted to collect

$783.79 from her. Plaintiff told the caller that Mr. Von Oldenburg had agreed at the

February 20, 2013 hearing that Plaintiff owed a total amount of $477.21. Kristie told

Plaintiff that with interest and court costs the amount Plaintiff owed was $783.79. Plaintiff

told Kristie to read the notes on her account and that it should reflect that the total amount

owed was $477.21. Kristie again told Plaintiff that $477.21 was the debt owed and that

interest and costs brought the amount up to $783.79. Plaintiff asked to speak to Defendant



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Brumbaugh & Quandahl’s employee and attorney Mr. Von Oldenburg. At this point Kristie

agreed with Plaintiff that the total amount owed was $477.21.

43.

Defendants’ attempts to collect an amount more than the amount owed to

Defendant West was a false, deceptive, misleading and unfair act done in violation of the

FDCPA, specifically a violation of 15 U.S.C. §§ 1692e, 1692e(2), 1692e(10), 1692f and

1692f(1).

44.

Plaintiff has suffered actual damages as a result of Defendants’ illegal

conduct in the form of anxiety, emotional distress, fear, and upset, amongst other negative

emotions. The actions of Defendants have also necessitated Plaintiff to drive to Defendant

Brumbaugh & Quandahl’s office, to court and to her attorney’s office, requiring her to pay

for gasoline as well as copying costs of court documents.

CLAIMS

FIRST CAUSE OF ACTION

VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. § 1692 et seq.

45.

Plaintiff incorporates by reference all of the above paragraphs of this

Complaint as though fully stated herein.

46.

The foregoing acts and omissions of the Defendants and their agents

constitute numerous and multiple violations of the FDCPA including but not limited to, each

and every one of the above-cited provisions of the FDCPA, 15 U.S.C. § 1692 et seq., with

respect to Plaintiff.

47.

As a result of Defendants’ violations of the FDCPA, Plaintiff is entitled to

actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to



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$1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A); and, reasonable attorney’s fees and costs

pursuant to 15 U.S.C. §1692k(a)(3), from each Defendant herein.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that judgment be entered against Defendants for:

FIRST CAUSE OF ACTION

VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. § 1692 et seq.

• an award of actual damages for the Plaintiff pursuant to 15 U.S.C. §1692k(a)(1);

• an award of statutory damages of $1,000.00 for the Plaintiff pursuant to 15

U.S.C. §1692k(a)(2)(A);

• an award of costs of litigation and reasonable attorney’s fees pursuant to 15

U.S.C. § 1692k(a)(3) for Plaintiff; and

• such other and further relief as the Court may find to be just and proper.



Plaintiff hereby demands trial by jury of all claims so triable.

JURY DEMAND

Dated: April 17, 2013

Respectfully submitted,








































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Sandra S. Mitchell, Plaintiff.







By: /s/ Burke Smith
Burke Smith, #19883
Burke Smith Law
10730 Pacific Street, Ste. 213
Omaha, NE 68114
Tel. (402) 718-8865
Fax (402) 218-4391
E-mail: [email protected]

ATTORNEY FOR PLAINTIFF

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