FDCPA Violation Complaint - Nebraska

FDCPA VIOLATION COMPLAINT — NEBRASKA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Jurisdiction and Venue
4. Parties
5. Factual Allegations
6. Count I — Violations of the FDCPA (15 U.S.C. § 1692 et seq.)
7. Count II — Nebraska Consumer Protection Act (Neb. Rev. Stat. § 59-1602)
8. Count III — Uniform Deceptive Trade Practices Act (Neb. Rev. Stat. § 87-302)
9. Count IV — Nebraska Collection Agency Act (Neb. Rev. Stat. § 45-601)
10. Damages
11. Prayer for Relief
12. Demand for Trial by Jury
13. Signature and Service Blocks
14. Verification
15. Certificate of Service
16. Nebraska Practice Notes
17. Sources and References

1. CAPTION

STATE OF NEBRASKA

DISTRICT COURT OF [COUNTY] COUNTY

CASE NO. [________________________________]

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF — VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT, NEBRASKA CONSUMER PROTECTION ACT, NEBRASKA UNIFORM DECEPTIVE TRADE PRACTICES ACT, AND NEBRASKA COLLECTION AGENCY ACT

2. INTRODUCTION

2.1. This is an action by Plaintiff, an individual consumer, against Defendant, a debt collector, for violations of the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., the Nebraska Consumer Protection Act ("NCPA"), Neb. Rev. Stat. § 59-1601 et seq., the Nebraska Uniform Deceptive Trade Practices Act ("UDTPA"), Neb. Rev. Stat. § 87-301 et seq., and the Nebraska Collection Agency Act ("NCAA"), Neb. Rev. Stat. § 45-601 et seq.

2.2. Plaintiff seeks actual damages, statutory damages, injunctive relief, costs, and reasonable attorney's fees.

3. JURISDICTION AND VENUE

3.1. This Court has subject-matter jurisdiction over the federal FDCPA claim pursuant to 15 U.S.C. § 1692k(d), which expressly authorizes suit in any "appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction." Nebraska district courts are courts of competent jurisdiction.

3.2. This Court has subject-matter jurisdiction over the state-law claims pursuant to Neb. Rev. Stat. § 24-302 (general jurisdiction of the district courts).

3.3. Venue is proper in [COUNTY] County under Neb. Rev. Stat. § 25-403.01 because [select and plead the supported basis: a Defendant resides in this county / the cause of action arose in this county / the transaction or part of the transaction from which the cause arose occurred in this county / all Defendants are nonresidents of Nebraska]. Plaintiff's residence alone is not a venue basis listed in § 25-403.01.

4. PARTIES

4.1. Plaintiff [PLAINTIFF NAME] is a natural person residing in [CITY], [COUNTY] County, Nebraska, and is a "consumer" as defined by 15 U.S.C. § 1692a(3).

4.2. Defendant [DEFENDANT NAME] is a [corporation / LLC / partnership] organized under the laws of [STATE] with its principal place of business at [ADDRESS]. Defendant regularly collects or attempts to collect, directly or indirectly, debts owed or asserted to be owed to another, and uses instrumentalities of interstate commerce or the mails in furtherance of its business. Defendant is therefore a "debt collector" within the meaning of 15 U.S.C. § 1692a(6).

4.3. Upon information and belief, Defendant [is / is not] licensed as a collection agency by the Nebraska Department of Banking and Finance pursuant to Neb. Rev. Stat. § 45-601.

5. FACTUAL ALLEGATIONS

5.1. The alleged debt at issue ("the Debt") arose out of a transaction in which Plaintiff incurred an obligation primarily for personal, family, or household purposes, and is therefore a "debt" as defined by 15 U.S.C. § 1692a(5).

5.2. On or about [DATE], Defendant first contacted Plaintiff regarding the Debt by [telephone call / letter / text / email] at [NUMBER / ADDRESS].

5.3. [DESCRIBE EACH ALLEGED VIOLATION CHRONOLOGICALLY — calls outside 8 a.m.–9 p.m. local time; threats of arrest or wage garnishment without lawful basis; calls to third parties disclosing the debt; failure to provide § 1692g validation notice; continued collection after written cease-and-desist; misrepresentation of debt amount, character, or legal status; communication after Plaintiff's written notice that Plaintiff was represented by counsel; etc.]

5.4. On [DATE], Plaintiff sent Defendant a written request for validation of the Debt pursuant to 15 U.S.C. § 1692g(b). A true and correct copy is attached as Exhibit A.

5.5. Defendant [continued collection activity before sending verification / resumed collection after sending a response that did not verify the debt or include a judgment], in violation of § 1692g(b).

5.6. As a direct and proximate result of Defendant's conduct, Plaintiff has suffered actual damages, including but not limited to emotional distress, anxiety, embarrassment, loss of sleep, time spent responding to unlawful collection conduct, and out-of-pocket expenses.

6. COUNT I — VIOLATIONS OF THE FDCPA (15 U.S.C. § 1692 et seq.)

6.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 5.6.

6.2. Defendant violated the FDCPA in one or more of the following respects:

• 15 U.S.C. § 1692c(a)(1) — communicating at unusual or inconvenient times;
• 15 U.S.C. § 1692c(a)(2) — communicating directly with a consumer known to be represented by counsel;
• 15 U.S.C. § 1692c(b) — communicating with third parties about the Debt;
• 15 U.S.C. § 1692d — engaging in conduct the natural consequence of which is to harass, oppress, or abuse;
• 15 U.S.C. § 1692e — using false, deceptive, or misleading representations, including misrepresenting the character, amount, or legal status of the Debt (§ 1692e(2)) and threatening action that cannot legally be taken (§ 1692e(5));
• 15 U.S.C. § 1692f — using unfair or unconscionable means to collect the Debt, including collecting amounts not authorized by agreement or law (§ 1692f(1));
• 15 U.S.C. § 1692g(a) — failing to provide the required validation notice within five days of the initial communication;
• 15 U.S.C. § 1692g(b) — continuing collection activity after Plaintiff's timely written dispute and before validation.

6.3. Plaintiff seeks actual damages, such additional damages as the court may allow, not exceeding $1,000 in this individual action, costs, and reasonable attorney's fees pursuant to 15 U.S.C. § 1692k(a).

7. COUNT II — NEBRASKA CONSUMER PROTECTION ACT (Neb. Rev. Stat. § 59-1602)

7.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 6.3.

7.2. Defendant's collection conduct constitutes "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" within the meaning of Neb. Rev. Stat. § 59-1602.

7.3. Defendant's conduct is not subject to the carve-out in Neb. Rev. Stat. § 59-1617 because [Defendant is not regulated as alleged / the conduct at issue falls outside any regulated activity / Defendant operated without the required Nebraska Collection Agency Act license].

7.4. Plaintiff has been injured in his/her property by Defendant's conduct and is entitled, pursuant to Neb. Rev. Stat. § 59-1609, to (a) injunctive relief enjoining further violations, (b) actual damages, (c) costs of suit including a reasonable attorney's fee, and (d) in the Court's discretion, increased damages bearing a reasonable relation to actual damages, not to exceed $1,000.

8. COUNT III — UNIFORM DECEPTIVE TRADE PRACTICES ACT (Neb. Rev. Stat. § 87-302)

8.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 7.4.

8.2. Defendant engaged in deceptive trade practices enumerated in Neb. Rev. Stat. § 87-302, including misrepresenting the character, source, sponsorship, approval, certification, or legal status of the Debt and engaging in conduct that creates a likelihood of confusion or misunderstanding.

8.3. Pursuant to Neb. Rev. Stat. § 87-303, Plaintiff is entitled to injunctive relief without proof of monetary damage, loss of profits, or intent to deceive.

8.4. Because Defendant has willfully engaged in the deceptive trade practices alleged, the Court should, in its discretion, award reasonable attorney's fees to Plaintiff under § 87-303(b).

9. COUNT IV — NEBRASKA COLLECTION AGENCY ACT (Neb. Rev. Stat. § 45-601)

9.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 8.4.

9.2. Upon information and belief, Defendant operated as a "collection agency" within the meaning of Neb. Rev. Stat. § 45-602 without obtaining the license required by § 45-601, in violation of Nebraska law.

9.3.

10. DAMAGES

10.1. Actual damages: out-of-pocket losses, lost wages, emotional distress, anxiety, embarrassment, and loss of enjoyment of life, in an amount to be proven at trial.

10.2. FDCPA additional damages. Plaintiff seeks such additional damages as the court may allow, not exceeding $1,000 in this individual action, under 15 U.S.C. § 1692k(a)(2)(A).

10.3. NCPA increased damages: discretionary award up to $1,000 per Neb. Rev. Stat. § 59-1609 for the § 59-1602 violation.

10.4. Costs and attorney's fees: under 15 U.S.C. § 1692k(a)(3), Neb. Rev. Stat. § 59-1609, and (where willful) Neb. Rev. Stat. § 87-303(b).

10.5. Injunctive relief: under Neb. Rev. Stat. §§ 59-1609 and 87-303.

10.6. NO PUNITIVE DAMAGES ARE SOUGHT. Punitive damages are not available under Nebraska law. See Neb. Const. art. VII, § 5; Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846 (1989).

11. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court enter judgment in favor of Plaintiff and against Defendant for:

• A. Actual damages in an amount to be proven at trial;
  Such additional damages as the court may allow, not exceeding $1,000 in this individual action, under 15 U.S.C. § 1692k(a)(2)(A);

• C. Discretionary increased damages of up to $1,000 under Neb. Rev. Stat. § 59-1609;

• D. A permanent injunction under Neb. Rev. Stat. §§ 59-1609 and 87-303 enjoining Defendant from further violations;
• E. Reasonable attorney's fees and costs under 15 U.S.C. § 1692k(a)(3), Neb. Rev. Stat. § 59-1609, and Neb. Rev. Stat. § 87-303(b);
• F. Pre-judgment and post-judgment interest as permitted by Neb. Rev. Stat. § 45-103 and § 45-104; and
• G. Such other and further relief as the Court deems just and equitable.

12. DEMAND FOR TRIAL BY JURY

Plaintiff demands a trial by jury on all issues so triable as a matter of right pursuant to Neb. Rev. Stat. § 25-1104 and the Seventh Amendment to the United States Constitution.

13. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Nebraska Bar No. [####]

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, NE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

14. VERIFICATION

STATE OF NEBRASKA

COUNTY OF [COUNTY]

I, [PLAINTIFF NAME], being first duly sworn upon oath, depose and say that I am the Plaintiff in the foregoing action; that I have read the foregoing Complaint and know the contents thereof; and that the same is true to my own knowledge except as to those matters stated upon information and belief, and as to those I believe them to be true.

[________________________________]

[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public

(My Commission Expires: [_______________])

15. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [_______________], 20[____], a true and correct copy of the foregoing COMPLAINT was served upon Defendant by [method — sheriff, certified mail return receipt requested per Neb. Rev. Stat. § 25-505.01, designated delivery, or as the Court directs] at the following address:

[DEFENDANT NAME AND ADDRESS / REGISTERED AGENT]

[________________________________]

[ATTORNEY NAME]

16. NEBRASKA PRACTICE NOTES

• No punitive damages. Nebraska is one of a small number of states (with Massachusetts, Washington, and Louisiana) that bars punitive, exemplary, and vindictive damages in civil cases. The Nebraska Supreme Court grounds the bar in Neb. Const. art. VII, § 5, which directs all penalties, fines, and forfeitures to the support of the common schools. See Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989); Miller v. Kingsley, 194 Neb. 123 (1975); Abel v. Conover, 170 Neb. 926 (1960). The § 59-1609 discretionary increase and the § 1692k statutory damages are NOT punitive and remain available.
• NCPA scope and § 59-1617 carve-out. The NCPA exempts conduct "subject to regulation by" specified federal or state agencies. Nebraska courts have read this narrowly; conduct outside the regulated activity, or conduct by an unlicensed actor, generally remains actionable. Plead the carve-out negation expressly.
• NCPA limitations period. Four years from accrual under Neb. Rev. Stat. § 59-1612.
• FDCPA limitations period. One year from the date of the discrete violation. Rotkiske v. Klemm, 589 U.S. 8 (2019).
• Forum. FDCPA actions may be filed in federal court (D. Neb.) or Nebraska District Court. Diversity jurisdiction is generally unavailable because FDCPA recoveries rarely exceed $75,000.
• Service. On a foreign collection agency, serve the registered agent (Neb. Rev. Stat. § 25-509.01) or the Nebraska Secretary of State for non-registered foreign entities.
• Collection Agency Act enforcement. The Nebraska Department of Banking and Finance regulates licensure. File a parallel complaint with NDBF to support the unfairness theory under the NCPA.
• Court captions. District Court is the trial court of general jurisdiction. County Court has small civil jurisdiction up to $74,000 (Neb. Rev. Stat. § 24-517(7)). Choose the forum based on damages exposure and counterclaim risk.
• Pleading standard. Nebraska is a notice-pleading jurisdiction (Neb. Ct. R. Pldg. § 6-1108(a)), but the federal court applies Twombly/Iqbal plausibility for the FDCPA claim.

17. SOURCES AND REFERENCES

• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. — https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-chapter41-subchapterV&num=0&edition=prelim
• 15 U.S.C. § 1692k (civil liability) — https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1692k&num=0&edition=prelim
• Neb. Rev. Stat. § 59-1602 (NCPA conduct prohibited) — https://nebraskalegislature.gov/laws/statutes.php?statute=59-1602
• Neb. Rev. Stat. § 59-1609 (NCPA private right of action) — https://nebraskalegislature.gov/laws/statutes.php?statute=59-1609
• Neb. Rev. Stat. § 59-1612 (NCPA limitations) — https://nebraskalegislature.gov/laws/statutes.php?statute=59-1612
• Neb. Rev. Stat. § 59-1617 (NCPA exemption) — https://nebraskalegislature.gov/laws/statutes.php?statute=59-1617
• Neb. Rev. Stat. § 87-302 (UDTPA conduct) — https://nebraskalegislature.gov/laws/statutes.php?statute=87-302
• Neb. Rev. Stat. § 87-303 (UDTPA remedies) — https://nebraskalegislature.gov/laws/statutes.php?statute=87-303
• Neb. Rev. Stat. § 45-601 (Collection Agency Act licensing) — https://nebraskalegislature.gov/laws/statutes.php?statute=45-601
• Nebraska Department of Banking and Finance — Collection Agency Licensing — https://ndbf.nebraska.gov/
• Nebraska Attorney General — Consumer Protection — https://protectthegoodlife.nebraska.gov/
• Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989) (no punitive damages)
• Miller v. Kingsley, 194 Neb. 123 (1975) (constitutional bar)
• Rotkiske v. Klemm, 589 U.S. 8 (2019) (FDCPA limitations)
• CFPB Debt Collection Resources — https://www.consumerfinance.gov/consumer-tools/debt-collection/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Nebraska must review and customize this document before filing. Laws, citations, and court rules change frequently; verify all authorities before use.