Kirk J. Nyberg v. Portfolio Recovery Associates, LLC

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIRK J. NYBERG,
Plaintiff-Appellant,
v.
PORTFOLIO RECOVERY ASSOCIATES,
LLC,
Defendant-Appellee.
No. 17-35315
D.C. No. 3:15-cv-01175-PK
District of Oregon,
Portland
ORDER
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
The panel has voted to grant the petition for rehearing. An Amended
Memorandum Disposition is being filed simultaneously with this Order.
The petition, Dkt. No. 101, is GRANTED. The court will accept a petition
for rehearing or rehearing en banc of the Amended Memorandum Disposition
within fourteen (14) days of the date of this Order.
FILED
JUL 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIRK J. NYBERG,
Plaintiff-Appellant,
v.
PORTFOLIO RECOVERY ASSOCIATES,
LLC,
Defendant-Appellee.
No. 17-35315
D.C. No. 3:15-cv-01175-PK
AMENDED MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak II, Magistrate Judge, Presiding
Submitted December 9, 2022 **
Seattle, Washington
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
Kirk Nyberg appeals the district court’s dismissal of his claims brought
under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692. We
have jurisdiction under 28 U.S.C. § 1291 and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Nyberg filed a complaint against Portfolio Recovery Associates, LLC
(“PRA”), claiming that PRA violated the FDCPA by bringing a state-court action
against Nyberg to collect an alleged credit-card debt. The district court granted
PRA’s motion for summary judgment and dismissed Nyberg’s claims.
PRA contends that this case must be dismissed for lack of Article III
standing. We hold that Nyberg, the party invoking federal court jurisdiction, has
satisfied his burden to establish standing. See Patel v. Facebook, Inc., 932 F.3d
1264, 1270 (9th Cir. 2019). Nyberg demonstrated a concrete injury by showing that
he incurred attorney’s fees defending against PRA’s state-court action. See
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203–04 (2021); Czyzewski v. Jevic
Holding Corp., 580 U.S. 451, 464 (2017).
Although Nyberg has standing, his claims were properly dismissed on
summary judgment. Nyberg argues that PRA committed unfair debt collection
practices by providing him false information, and by bringing an account-stated
claim against Nyberg that was legally baseless and time-barred. These arguments
fail as a matter of law.
Nyberg’s falsity argument fails because he does not establish that the alleged
falsities were material. Even if we assume PRA made a false statement in its debt-
collection notice, Nyberg does not demonstrate that the statement of what he owed
“affected [his] ability to make intelligent decisions” about how to respond to the

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collection effort. See Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir.
2010). Likewise, even if PRA’s state-court complaint falsely suggested that the
FDCPA permitted Nyberg only 60 days to object to the credit-card statement,
Nyberg does not identify how this communication was materially misleading, when
Nyberg’s credit-card holder agreement independently required that he make any
objections within 60 days.
Nyberg’s argument that the account-stated claim was legally baseless and
therefore in violation of the FDCPA also fails. A claim for account stated was
recognized in Oregon law at the time PRA filed its complaint. See, e.g., Sunshine
Dairy v. Jolly Joan, 380 P.2d 637, 638 (Or. 1963); see also Portfolio Recovery
Assocs., LLC v. Sanders, 462 P.3d 263, 275 (Or. 2020) (en banc) (subsequently
confirming the viability of account-stated claims and citing cases). It is undisputed
that PRA acquired Nyberg’s credit-card debt, PRA demanded payment of that debt,
and Nyberg neither objected to the demand nor paid PRA. While PRA concedes
that its complaint failed to plead the necessary mutual asset for account stated, that
deficiency under Oregon law is not a per se violation of the FDCPA. See Wade v.
Reg’l Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir. 1996). Nyberg does not identify
how this deficiency rendered PRA’s complaint materially false or deceptive or an
unfair or unconscionable debt-collection method. See 15 U.S.C. §§ 1692e–f.
Nor was PRA’s collection action time-barred. Cf. Kaiser v. Cascade Cap.,

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LLC, 989 F.3d 1127, 1130 (9th Cir. 2021) (filing a lawsuit to collect debts that are
outside the applicable statute of limitations violates the FDCPA). Because PRA’s
action was filed in Oregon while Nyberg’s credit-card agreement was governed by
Virginia law, we apply Oregon conflict-of-laws rules to determine whether the
relevant Oregon or Virginia statute of limitations applied to the action. See
Sanders, 462 P.3d at 267, 274. Since both states have a relevant connection to the
dispute and neither party has identified a substantive conflict between Virginia and
Oregon laws governing claims for account stated, Oregon’s statute of limitations
applied to PRA’s action. See id. at 268–74. Nyberg does not contest that PRA filed
its account-stated claim within Oregon’s applicable statute of limitations period.
Nyberg’s argument that, under the concurrent remedy doctrine, Virginia’s time bar
on a breach-of-contract claim precludes an account-stated claim in Oregon is not
persuasive.
The district court’s order is AFFIRMED.

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