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Nyberg v. Portfolio Recovery Associates, L.L.C.

United States District Court, D. Oregon, Portland Division

March 20, 2017

KIRK J. NYBERG, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, L.L.C., Defendant,

          OPINION AND ORDER

          HON. PAUL PAPAK U.S. MAGISTRATE JUDGE

         Plaintiff 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.

         Both parties move for summary judgment. For the following reasons, I grant Defendant's motion and deny Plaintiffs motion.

         BACKGROUND

         The 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.

         Defendant "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.

         When 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 amounts due.

         After 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.

         On 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.

         LEGAL STANDARDS FOR SUMMARY JUDGMENT MOTIONS

         The 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).

         DISCUSSION

         Plaintiff 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.

         Here, 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 ...


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