United States District Court, D. Oregon, Portland Division
KIRK J. NYBERG, Plaintiff,
PORTFOLIO RECOVERY ASSOCIATES, L.L.C., Defendant,
OPINION AND ORDER
PAUL PAPAK U.S. MAGISTRATE JUDGE
Kirk J. Nyberg brings this action against Defendant Portfolio
Recoveiy Associates, LLC, claiming that Defendant violated
the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§ 1692, by bringing an action against Plaintiff in state
court seeking to collect $834 allegedly due on Plaintiffs
credit card account with Capital One Bank (USA), N.A.
(Capital One). The collection action was later dismissed for
failure to prosecute. Here, Plaintiff claims that
Defendant's state court collection action violated the
FDCPA by asserting a claim for account stated rather than a
claim for breach of the cardholder agreement between
Plaintiff and Capital One.
parties move for summary judgment. For the following reasons,
I grant Defendant's motion and deny Plaintiffs motion.
parties stipulate to the following facts for purposes of this
action only: (1) Defendant is a debt collector as defined by
15 U.S.C. § 1692a(6); (2) Plaintiff is a consumer as
defined by 15 U.S.C. § 1692a(3); (3) the debt at issue
is a consumer debt, as defined by 15 U.S.C. § 1692a(5);
and (4) Plaintiff received three cardholder agreements while
he held an account with Capital One. Stipulations of Fact,
ECF No. 53.
"is in the business of acquiring delinquent credit
accounts for collection." Eyre Decl. ¶ 3, ECF No.
49-1. In December 2012, Defendant agreed to purchase "a
portfolio of charged-off credit card accounts" from
Capital One through a "Forward Flow Receivable Sale
Agreement." Id. Plaintiff's account with
Capital One was included in the sale to Defendant.
Capital One sold Plaintiffs credit card account (the Account)
to Defendant, it provided Plaintiffs billing address, phone
number, social security number, date of last payment, the
date that Capital One "charged-off the Account, and the
balance due. Defendant's last payment was posted July 19,
2010, and the unpaid balance was then $834.25. After
charge-off, Capital One assessed interest of $142.32, so the
total balance due was $976, 57. Eyre Decl. ¶ 4.
Defendant later obtained Plaintiffs monthly account
statements from Capital One. Plaintiff did not dispute the
Defendant acquired Plaintiffs Account, it wrote Plaintiff in
an attempt to collect the amount due, which Defendant set at
$977. After its initial collection efforts failed, Defendant
filed the action (the State Court Action) against Plaintiff
in Washington County Circuit Court on June 25, 2014. Nordyke
Decl. ¶ 4, ECF No. 49-2. Defendant's complaint
asserted only one claim, for account stated, seeking $834.25.
Id. & Ex. A (copy of complaint in State Court
Action). Dale Nordyke, who works as associate counsel for
Defendant, filed the State Court Action. Plaintiff was
represented by counsel in the State Court Action.
November 24, 2014, the State Court Action was dismissed
without prejudice for failure to prosecute. Nordyke Decl.
¶ 6. It is unclear on this record why Defendant failed
to pursue the State Court Action, but the reason for the
dismissal is not relevant here.
STANDARDS FOR SUMMARY JUDGMENT MOTIONS
court must grant summary judgment if there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). If the
moving party shows that there are no genuine issues of
material fact, the nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial.
Cehtex Corp. v. Catrett, 477 U.S. 317, 322-23(1986).
claims that Defendant's complaint in the State Court
Action violated the FDCPA. It is undisputed that "a
complaint served directly on a consumer to facilitate
debt-collection efforts is a communication subject to the
requirements of §§ 1692e and 1692f [of the
FDCPA]." Donohue v. Quick Collect, Inc., 592
F.3d 1027, 1031-32 (9th Cir. 2010). Plaintiffs claim
comprises four counts: (1) Defendant falsely asserted a claim
for account stated, (2) Defendant brought the account stated
claim to evade the statute of limitations and "other
defenses" that would have been available if Defendant
had brought a claim for breach of contract based on the
cardholder agreement between Plaintiff and Capital One, (3)
Defendant's account stated claim was barred by the
applicable statute of limitations, and (4) Defendant
overstated the debt owed by Plaintiff. Am. Compl.
¶¶ 31-34, ECF No. 24.
Defendant's complaint in the State Court Action alleges,
"Defendant, by failing to object or otherwise dispute
the stated balance of the account, and by becoming indebted
to the Original. Creditor [Capital One] for the total sum
stated herein, and by impliedly agreeing to pay the total
sum, but in failing to pay the total sum, " has incurred
liability for an account stated. Nordyke Decl., Ex. A, at