and submitted May 16, 2017
Multnomah County Circuit Court 14CV05489 Eric J. Neiman,
Judge pro tempore.
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.
DeHoog, Presiding Judge, and Hadlock, Judge, and Tookey,
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.
Or.App. 464] TOOKEY, J.
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.
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
who is currently an Oregon resident, opened a credit card
account with Capital One Bank (USA), N.A. in
2008. 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
"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."
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.
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.
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. 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.
Choice of Law
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. "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. 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 ...