                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 11-3128
                          ___________________________

                                Tracy Lind; Steve Lind

                        lllllllllllllllllllll Plaintiffs - Appellants

                                             v.

                              Midland Funding, L.L.C.;
                              Messerli & Kramer, P.A.;
                                 Derrick N. Weber

                        lllllllllllllllllllll Defendants - Appellees
                                         ____________

                      Appeal from United States District Court
                     for the District of Minnesota - Minneapolis
                                    ____________

                               Submitted: May 16, 2012
                                Filed: August 9, 2012
                                    ____________

Before RILEY, Chief Judge, MELLOY and SMITH, Circuit Judges.
                              ____________

MELLOY, Circuit Judge.

       Tracy and Steve Lind filed this suit after defendants attached funds in the Linds'
joint bank account pursuant to Minnesota's garnishment laws. The Linds allege that
defendants deprived Tracy of her due process rights in violation of 42 U.S.C. § 1983
and that defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
(FDCPA). The district court1 dismissed both claims. We affirm.

                                          I.

      Steve Lind defaulted on a credit card debt he held with Bank of America. Bank
of America assigned the debt to Midland Funding, LLC, and on November 16, 2010,
Midland obtained a default judgment against Steve in state court for the amount of
$11,410.90. Midland retained Messerli & Kramer, P.A.2 to collect the debt on its
behalf.

      On January 3, 2011, Messerli served a third-party garnishment on First National
Bank of the North (FNB). FNB informed Messerli that it possessed funds owed to
Steve Lind, and attached $1,339.72 in the two accounts on which his name appeared.
Of the attached funds, $328.65 were from a joint checking account shared by Steve
and Tracy, while the remaining $1,011.07 were in a savings account that bore only
Steve's name.3 Pursuant to Minnesota's garnishment statutes, FNB sent notice to Steve
Lind that the funds in his accounts were attached, and the notice explained the
procedure for claiming exemptions. Separate notice was not sent to Tracy Lind, and
her name did not appear on the notice sent to Steve. She was, however, aware of the


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
      2
     Derrick Weber, named individually as a defendant, is an attorney with Messerli
& Kramer.
      3
        The parties dispute whether the savings account was owned solely by Steve or
owned jointly with Tracy. Because this appeal comes to us from a grant of the
defendants' motion to dismiss, we accept as true the Linds' contention that the savings
account was jointly owned by Tracy; however, the amount of funds in dispute does
not alter the extent of Tracy's rights under § 1983 or the FDCPA.

                                         -2-
notice sent to her husband, and the Linds sought legal counsel for advice on the
garnishment.

       On January 13, 2011, Steve Lind submitted an exemption claim alleging that
all of the attached funds were either contributed by Steve from his unemployment
benefits or contributed by Tracy, and therefore were not subject to the garnishment
pursuant to Minnesota garnishment laws. On January 20, Messerli sent Steve a letter
agreeing to release $236 from the joint checking account as an amount attributable to
exempt unemployment benefits, but Messerli objected to the Linds' claim as to the
remaining $1,103.72 because the source of those funds was unclear. An exemption
hearing in state court was set for January 31; however, the judge ordered the parties
to discuss settlement prior to the hearing. After discussions with Messerli, the Linds
agreed to pay Midland $500 of the disputed $1,103.72, and Midland agreed to release
the remaining funds.

       The Linds subsequently filed suit in the District of Minnesota alleging
violations of 42 U.S.C. § 1983 and the FDCPA. The Linds also sought a declaratory
judgment that the Minnesota garnishment statutes are unconstitutional. The district
court dismissed the suit, finding that Tracy Lind had received constitutionally
sufficient notice and an opportunity for a hearing, and noting also that the Linds failed
to allege any state action, as required by their due process claim. As for the Linds'
second claim, the district court found that they had failed to allege any independent
violation of the FDCPA in the complaint. Because no underlying controversy
remained, the court declined to address the declaratory judgment claim regarding the
constitutionality of the Minnesota statutes.4 The Linds appeal.


      4
        Although the Linds continue to argue that the Minnesota garnishment statute
is unconstitutional insofar as its purported lack of safeguards gave rise to their § 1983
claim against the defendants, on appeal they do not appear to challenge the district
court's refusal to address their request for declaratory judgment. We therefore do not
consider the constitutionality of the Minnesota statute independently from the Linds'

                                          -3-
                                           II.

        We review de novo a dismissal for failure to state a claim, accepting as true the
facts alleged in the complaint and granting reasonable inferences in favor of the non-
moving party. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009). "A claim upon
which relief may be granted . . . under § 1983 must embody at least two elements."
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). First, the plaintiff must show
she was deprived of a right "secured by the Constitution and the laws" of the United
States; second, she must also show that the defendants acted under color of state law.
Id. (internal quotation marks omitted). Since we conclude the Linds failed to establish
the deprivation of a constitutional right, we affirm on that basis and do not address the
under-color-of-state-law prong.

      The Linds argue that Tracy was deprived of rights conferred by the Due Process
Clause of the Fourteenth Amendment because she did not receive predeprivation
notice and hearing before defendants attached funds in her bank account. After
considering due process concerns about prejudgment and postjudgment garnishment
procedures as well as the practical constraints on garnishing a jointly held bank
account under Minnesota law, we conclude that Tracy was not entitled to
predeprivation notice and hearing.

        The Due Process Clause provides that "[n]o State shall . . . deprive any person
of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
"Due process is a flexible concept, requiring only 'such procedural protections as the
particular situation demands.'" Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698,
702 (8th Cir. 2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).
Despite this flexibility, "[f]or more than a century the central meaning of procedural



§ 1983 action. See United States v. Simmons, 964 F.2d 763, 777–78 (8th Cir. 1992)
(issue not raised on appeal is waived).

                                          -4-
due process has been clear: 'Parties whose rights are to be affected are entitled to be
heard; and in order that they may enjoy that right they must first be notified.'" Fuentes
v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 68 U.S. 223, 233 (1863)).
The Supreme Court has made clear that the opportunity to be heard must come "at a
meaningful time and in a meaningful manner." Mathews, 424 U.S. at 333 (internal
quotation marks omitted). It has also explained that affected parties need not receive
actual notice, but only notice that is "reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action." Mullane
v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

       The Linds concede that Tracy had actual notice. They maintain, however, that
because notice of the garnishment was sent only to Steve, in his own name, it was not
"reasonably calculated" to reach Tracy. We have said that "a person cannot complain
about the constitutionality of the method used to provide notice when he or she has
received actual notice (assuming it is timely), for he or she has suffered no harm."
Nunley v. Dep't of Justice, 425 F.3d 1132, 1139 (8th Cir. 2005). After Steve received
notice of the garnishment, Tracy promptly availed herself of procedures to contest the
garnishment. The facts recited in the Linds' complaint detailing their response to the
notice sent in Steve's name do not support any allegation that Tracy suffered harm by
not receiving separate notice in her own name.5


      5
       Furthermore, considering that all but $92.65 of the disputed funds were in an
account bearing only Steve's name, the Linds do not explain how either defendants or
FNB would have been aware of the need to provide separate notice to Tracy about the
disposition of $1,011.07 in that account. The Linds essentially contend that due
process requires a creditor or garnishee to carefully review individual deposits into
every garnished account in order to determine whether funds properly belong to an
individually named account holder. The practical limitations of this argument support
our conclusion that, in this case, notice sent to Steve was reasonably calculated to
apprise Tracy of the garnishment. Cf. Savig v. First Nat'l Bank of Omaha, 781
N.W.2d 335, 344 (Minn. 2010) ("If we were to place the burden [of proving
ownership of funds] on a party other than the account holders, as a practical matter,

                                          -5-
       Nor are we persuaded that the Linds' opportunity to be heard failed to come at
a meaningful time. The Linds contend that only predeprivation notice and hearing
could have satisfied Tracy's due process rights. For support, the Linds cite to a line of
Supreme Court cases beginning with Sniadach v. Family Fin. Corp., 395 U.S. 337
(1969), where the Court invalidated a Wisconsin statute permitting the prejudgment
garnishment of wages without prior notice or an opportunity for a hearing. See also
Fuentes, 407 U.S. at 96 (invalidating Florida and Pennsylvania statutes that permitted
secured installment sellers to repossess goods sold without prior notice, hearing, or
judicial participation). In Fuentes and Sniadach, the Court was concerned primarily
with the hardships imposed on debtors when defending against wrongful deprivations.
See Fuentes, 407 U.S. at 81; Sniadach, 395 U.S. at 334.

       The Court clarified in Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), and
N. Ga. Finishing, Inc. v. Di-Chem Inc., 419 U.S. 601 (1975), that predeprivation
notice and hearing are not always required for attachment statutes to satisfy due
process. In Mitchell, the court approved as constitutional a Louisiana statute that
permitted a creditor to secure a writ of sequestration on installment goods without first
providing notice or an opportunity to be heard. Unlike the statutes at issue in Fuentes
and Sniadach, the Louisiana statute contained certain procedural safeguards against
wrongful deprivation, such as a requirement that a creditor provide a detailed factual
showing to a judge before the writ could issue, the availability of an "immediate"
postdeprivation hearing after attachment, and the presence of judicial supervision
throughout the attachment process. Mitchell, 416 U.S. at 608–10. In light of these
safeguards, the debtor's interest in the continued use and possession of his property
did not outweigh the creditor's interest in protecting against the concealment or
transfer of funds, and therefore the debtor was not denied due process when he was
given a postdeprivation hearing. Id. at 607. By contrast, in North Georgia, the Court



given the burden associated with attempting to prove ownership by another, it would
be difficult, and perhaps impossible, to garnish a joint bank account.").

                                          -6-
again invalidated a prejudgment garnishment statute that had none of the safeguards
present in Mitchell. North Georgia, 419 U.S. at 607–08. As it had in Fuentes and
Sniadach, the Court in North Georgia disapproved of a procedure where a writ of
garnishment was issuable upon bare conclusory allegations by a creditor, and where
there was no participation by a judge. Id.

       The Linds argue that, because the defendants in this case obtained a writ of
execution from a court administrator rather than from a judge after a detailed factual
showing, North Georgia, rather than Mitchell, should control the outcome. The Linds
argue that the Minnesota statute does not contain any procedural safeguards that
would justify delaying Tracy's opportunity to be heard until after the attachment of her
funds. However, the postjudgment nature of the garnishment in this case distinguishes
it from the Supreme Court's consideration of safeguards in prejudgment attachment
cases.

        The attachment in this case occurred after the defendants had already secured
a judgment on Steve Lind's debt. Courts have noted that, when balancing the due
process interests of a creditor and a debtor, the creditor's interest should be accorded
more weight in a postjudgment context than it should be accorded in a prejudgment
attachment. See Reigh v. Schleigh, 784 F.2d 1191, 1198 (4th Cir. 1986) (noting that
"it is important to emphasize" the difference between prejudgment and postjudgment
attachment, and that in the case of prejudgment attachment, "a party would be
expected to enjoy greater rights than one who has already been adjudged judicially
liable"); Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355, 1366 (5th Cir. 1976)
("Unlike the prejudgment creditor, the creditor here has a judicially-awarded judgment
that evidences the defendant's debt. . . . This factor sharply distinguishes prejudgment
from postjudgment garnishment cases. As a result, the Sniadach holding that notice
and an opportunity for a hearing must precede a prejudgment garnishment of wages
does not directly apply here."). Indeed, the Supreme Court acknowledged in Fuentes
that its conclusion that a debtor could not be deprived of property without prior notice

                                          -7-
and hearing absent "extraordinary situations," 407 U.S. at 90, applied only narrowly
to the context of prejudgment deprivations, id. at 96 ("We do not question the power
of a State to seize goods before a final judgment in order to protect the security
interests of creditors so long as those creditors have tested their claim to the goods
through the process of a fair prior hearing.").

       In both the prejudgment and postjudgment contexts, postponing notice and
hearing until attachment has occurred generally serves a creditor's interest in
preventing the waste or concealment of a debtor's assets. See Mitchell, 416 U.S. at
608–09; Brown, 539 F.2d at 1367. In the postjudgement context, however, there is
less risk of an erroneous deprivation because the creditor's claim to the debtor's
property is supported by a judgment on an existing debt. Thus, when the creditor's
interest is weighed against a judgment debtor's interest in the continued use and
possession of his property, other circuits have found that postdeprivation notice and
hearing can satisfy due process so long as it is "prompt" or "expeditious." See Reigh,
784 F.2d at 1198; Trans-Asiatic Oil Ltd. S.A. v. Apex Oil Co., 743 F.2d 956, 960 (1st
Cir. 1984); Finberg v. Sullivan, 634 F.2d 50, 59 (3d Cir. 1980); Brown, 539 F.2d at
1368.6




      6
       The Linds maintain only that due process required a predeprivation hearing,
and make no argument about whether their January 31 hearing was sufficiently
prompt after the January 3 attachment of funds and their January 13 filing of an
exemption claim. See, e.g., Finberg, 634 F.2d at 59 (concluding that "fifteen days is
too long a period to deprive a person of money needed for food, shelter, health care,
and other basic needs" pending an exemption hearing during postjudgment
garnishment proceedings). Because the Linds do not address whether any post-
deprivation hearing could satisfy due process, we do not consider the timing
requirements for a postdeprevation hearing to satisfy due process. Compare id. with
Reigh, 784 F.2d at 1198 (eschewing Finberg's specific time-frame requirement for "a
more flexible course, finding due process satisfied by a requirement of a 'prompt' or
'expeditious' hearing").

                                         -8-
       Our analysis is somewhat different here because Tracy is not a debtor, and the
defendants have a very limited right under Minnesota law to garnish her funds from
a joint account in order to satisfy Steve's debt. See Enright v. Lehmann, 735 N.W.2d
326, 336 (Minn. 2007) ("Under the plain language of Minn. Stat. § 524.6-203, funds
in a joint account may not be garnished to satisfy a judgment against a party who did
not contribute the funds, unless the creditor provides clear and convincing evidence
that the depositor intended the funds to belong to the debtor."). To the extent that the
Linds argue that this postjudgment standard is not appropriate for Tracy because she,
unlike her husband,7 is not a debtor, see Reigh, 784 F.2d at 1198 (acknowledging that
a party who has not been adjudged liable for a debt enjoys greater due process rights),
we note that Tracy's right to the use and possession of her funds changed according
to state law when she deposited them into a jointly held account. By operation of
Minnesota law, the owners of a joint account bear the burden to prove that funds in
the account do not belong to the debtor.

        This burden was explained by the Minnesota Supreme Court in Savig v. First
Nat'l Bank of Omaha, 781 N.W.2d 335 (Minn. 2010). Savig's facts are similar to
those in the present case. The Savigs were a husband and wife sharing a joint bank
account. They brought a suit for wrongful conversion and a violation of the FDCPA
when a creditor initiated garnishment proceedings on their joint account in order to
satisfy a judgment debt held only by the wife. A federal court certified three questions
of law to the Minnesota Supreme Court, asking: (1) whether a judgment creditor could
initiate garnishment proceedings on a joint account in order to satisfy a debt held by
only one account holder; (2) who would bear the burden of proving the source of
funds in that account; and (3) what presumptions regarding ownership would apply
in the absence of proof. Id. at 337. Answering that it was permissible to initiate
proceedings on a joint account, the Minnesota Supreme Court explained that practical


      7
       On appeal, the Linds do not argue that Steve, as a judgment debtor, was
deprived of his due process rights by receiving postdeprivation notice and hearing.

                                          -9-
necessity counseled against requiring creditors to prove independent ownership of
funds before initiating garnishment proceedings against a joint account. Id. at 344.

       Under Minnesota law the garnishment summons imposes on the garnishee an
immediate obligation to retain the property of a debtor, therefore, Savig explained,
"some type of presumption concerning ownership of funds in a joint account is
necessary to answer whether and to what extent a garnishee may initially retain funds
to fulfill its statutory obligation." Id. The Minnesota Supreme Court decided that
practical concerns must guide its use of presumptions, and noted that if it "were to
place the burden on a party other than the account holders, as a practical matter, given
the burden associated with attempting to prove ownership by another, it would be
difficult, and perhaps impossible, to garnish a joint bank account." Id. Although
Tracy's interest in a predeprivation hearing may be greater than her husband's, the risk
to a creditor is the same. A requirement that a non-debtor joint account holder receive
predeprivation notice and hearing would likely increase the risk that the debtor joint
account holder might conceal or transfer the property that is subject to attachment.

       Although we are mindful of the hardship such a process imposes on a non-
debtor to prove her funds are not subject to garnishment, we believe that these
practical difficulties of jointly held bank accounts lend weight to a creditor's interest.
Because Tracy Lind had actual notice and an opportunity for a postdeprivation
hearing, we conclude that her Fourteenth Amendment right to due process was not
violated when defendants attached funds from the Linds' joint bank account pursuant
to the Minnesota garnishment statutes.8




      8
        Because we hold that Tracy Lind was not entitled to predeprivation hearing,
we do not reach the district court's conclusion that the Linds failed to adequately plead
state action necessary for a due process claim.

                                          -10-
                                          III.

       The FDCPA was enacted to prevent "abusive, deceptive, and unfair debt
collection practices." 15 U.S.C. § 1692(a), (e). The Linds' complaint alleged
"numerous and multiple" violations of the Act, citing many provisions; however, they
alleged no specific facts that demonstrate these violations other than stating that
defendants seized funds from Tracy for a debt she did not owe. A complaint that
consists of no more than conclusory allegations or that merely applies labels to
defendants' conduct will not survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). The Linds do not dispute that defendants acted pursuant to the
Minnesota garnishment statute, but maintain that the garnishment was unfair and
abusive because the procedure deprived Tracy of her due process rights. The Linds
cite no authority that suggests a successful § 1983 claim can establish a per se
violation of the FDCPA. In any event, because the Linds have not established a
constitutional violation, this argument must fail as a matter of law. The district court
did not err in dismissing the Linds' claim.

                                          IV.

      Accordingly, we affirm the ruling of the district court.
                     ______________________________




                                         -11-
