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Portfolio Recovery Associates, LLC v. Sanders

Court of Appeals of Oregon

June 20, 2018

PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff-Respondent,
v.
Jason SANDERS, Defendant-Appellant.

          Argued and submitted May 16, 2017

          Multnomah County Circuit Court 14CV05489 Eric J. Neiman, Judge pro tempore.

          Mark G. Passannante argued the cause for appellant. On the briefs was Bret Knewtson.

          Jeffrey A. Topor argued the cause for respondent. Also on the brief were Simmonds & Narita LLP, Julie A. Smith, Robert E. Sabido, and Cosgrave Vergeer Kester LLP.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Tookey, Judge. [*]

         Case Summary: Defendant appeals a judgment for plaintiff on its claim for an account stated. Defendant argues that the trial court erred in applying Oregon's six-year statute of limitation, rather than Virginia's three-year statute of limitation, to plaintiff's claim because the claim was based on credit card debt with a bank in Virginia. Defendant also argues that federal law prohibits plaintiff from pursuing a claim for an account stated based on underlying consumer credit card debt and that, even if the claim were permissible, plaintiff was not entitled to summary judgment in this case. Held: (1) Based on Oregon's choice-of-law statutes, Oregon law applies to plaintiff's claim, including Oregon's six-year statute of limitation. (2) Plaintiff's claim is not prohibited by federal law. (3) There exists a material issue of disputed fact whether there was a meeting of the minds on the specific amount owed by defendant on the account and, thus, the trial court erred in granting summary judgment to plaintiff.

          [292 Or.App. 464] TOOKEY, J.

         This case concerns the amount due on a credit card, a claim for an account stated on that amount due, and a choice-of-law question. Defendant appeals a judgment for plaintiff, Portfolio Recovery Associates, LLC, on its claim for an account stated, after the trial court granted Portfolio's motion for summary judgment and denied defendant's cross-motion for summary judgment. On appeal, defendant contends that the trial court erred in applying Oregon's six-year statute of limitation to Portfolio's claim, rather than Virginia's three-year limitation period, which would have barred Portfolio's claim. Defendant also argues that Portfolio was not entitled to summary judgment, because federal law prohibits Portfolio's claim for an account stated and because there were disputed issues of material fact. We conclude that the trial court did not err in applying Oregon law to Portfolio's claim; however, we also conclude that the trial court did err in granting Portfolio's motion for summary judgment, because a genuine issue of material fact exists whether there was a "meeting of the minds" on the amount owed by defendant to support a claim for an account stated. Accordingly, we reverse and remand.

         I. FACTS

         Defendant has assigned error both to the trial court's grant of Portfolio's motion for summary judgment and the denial of defendant's motion for summary judgment. "We review the record for each motion in the light most favorable to the party opposing that motion." Ellis v. Ferrellgas, L.P., 211 Or.App. 648, 653, 156 P.3d 136 (2007). "As always, summary judgment is appropriate only if the facts, viewed in the light most favorable to the nonmoving party, and drawing all reasonable inferences in favor of that party, demonstrate that the moving party is entitled to judgment as a matter of law." Yale Holdings, LLC v. Capital One Bank, 263 Or.App. 71, 76, 326 P.3d 1259 (2014).

         Defendant, who is currently an Oregon resident, opened a credit card account with Capital One Bank (USA), N.A. in 2008.[1] Capital One is chartered in Virginia. The credit [292 Or.App. 465] card agreement that defendant attached to his response to plaintiffs motion for summary judgment included a choice-of-law provision that provided, in part:

"This agreement will be interpreted using Virginia law. Federal law will be used when it applies.
"*** [T]he applicable statute of limitations period for all provisions and purposes under this Agreement (including the right to collect debt) will be the longer period provided by Virginia or the jurisdiction where you live."

         Defendant defaulted on his credit card debt and, on March 15, 2010, Capital One charged the debt off as uncollectable, in the amount of $1, 494.85. The February 14 to March 13, 2010, statement (March 2010 statement) that Capital One sent to defendant before charging off the debt showed a balance due of $1, 494.85. That statement was sent to defendant at an address in Washington, and included an explanation that the amount shown in the statement was not the payoff amount for the account. Capital One also sent a statement to defendant in August 2011 at the Washington address that showed an amount due of $1, 918.60. In July 2013, Capital One transferred defendant's account to Portfolio. Capital One attested that the ending balance on defendant's account at the time of the transfer to Portfolio was $2, 039.21.

         On May 23, 2014, Portfolio brought this action against defendant to collect $1, 494.85, not based on the credit card agreement, but based on a claim for an account stated. Portfolio alleged that, after defendant defaulted on the account, Capital One requested full payment of the account and that, when Capital One charged off the account, it suffered damages in the amount of $1, 494.85. Portfolio further alleged that, by defendant's failure to object to or dispute the stated balance of the account, defendant and Capital One formed a new contract for the amount stated. Defendant admitted in his answer that he did not dispute any statements he received from Capital One "until this lawsuit was filed, " but also raised as an affirmative defense that Portfolio's action was time barred by the applicable Virginia statute of limitation.

          [292 Or.App. 466] The case was assigned to mandatory arbitration and the arbitrator found in defendant's favor. Portfolio appealed that decision and requested a trial de novo. In the trial court, the parties filed cross-motions for summary judgment. Portfolio sought summary judgment on its claim; defendant disputed that Portfolio was entitled to judgment as a matter of law and, additionally, sought summary judgment based on his affirmative defense that the action was time barred. On the statute of limitation issue, Portfolio argued that Oregon's six-year statute of limitation applied, and defendant argued that Virginia's three-year statute of limitation applied. The trial court determined that Oregon's six-year statute of limitation applied and granted Portfolio's summary judgment motion on the claim for an account stated and denied defendant's motion.[2] In the general judgment, the trial court awarded Portfolio the sum of $1, 494.85. Defendant appeals the general judgment, arguing that the trial court erred both in applying Oregon law, and in determining that Portfolio was entitled to summary judgment on its claim.

         II. ANALYSIS

         A. Choice of Law

         We start with the choice-of-law issue presented in this case. "To determine which statute of limitations applies, we apply Oregon's conflict-of-law principles to determine which state's law is the basis of plaintiff's claims." Spirit Partners, LP v. Stoel Rives LLP,212 Or.App. 295, 301, 157 P.3d 1194 (2007); see also ORS 12.430; ORS 12.440.[3] "The [292 Or.App. 467] threshold question in a choice-of-law problem is whether the laws of the different states actually conflict." Spirit Partners, LP, 212 Or.App. at 301. The proponent of applying a different state's law has the obligation to identify a material difference between Oregon law and the law of the other state. Id. Here, the only difference identified by defendant is that the applicable statute of limitation in Virginia is three years, Va Code 8.01-246(4), and in Oregon is six years, ORS 12.080. Because Portfolio's claim would be timely under Oregon's statute of limitation, but untimely under Virginia's, defendant asserts that there is an actual conflict between those two state's laws.[4] We have previously held that a conflict in the states' statute of limitation period, such that the action would be barred by application of one of the state's statute of limitation, creates an actual conflict that must be resolved by applying Oregon's conflict-of-law principles. Spirit Partners, LP, 212 ...


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