1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

BRIAN CARLOS, on behalf of himself and 

all others similarly situated,

 No. 3:14-cv-00921-MO

Plaintiff, 

 OPINION AND ORDER

v. 

 

PATENAUDE & FELIX, A.P.C.,

Defendant.

MOSMAN, J., 

On August 18, 2015 a motions hearing was held in the above-titled action. At issue was 

the proper calculation of the statute of limitations. At the hearing, I resolved that the credit card 

agreement entered into between Brian Carlos and Capital One was a written contract, thereby 

triggering a five-year statute of limitations under Virginia law. Following the hearing, I 

instructed the parties to provide additional briefing concerning whether the statute of limitations 

had run by the time Patenaude & Felix A.P.C. filed a collection action against Mr. Carlos on July 

19, 2013. 

Capital One’s cause of action accrued on the due date of Mr. Carlos’s first missed 

minimum payment on his account, March 3, 2007. Without any tolling, the five-year statute of 

limitations would have expired on March 3, 2012. However, I have determined that the statute of 

limitations tolled on two occasions for a total of 532 days, thereby extending the statute of 

Case 3:14-cv-00921-MO Document 56 Filed 09/14/15 Page 1 of 3
2 – OPINION AND ORDER

limitations to August 17, 2013.1 Because Patenaude & Felix filed its collection action on July 19, 

2013, I hold that the statute of limitations did not run and therefore DENY Mr. Carlos’s Motion 

to Certify Class [24], DENY Mr. Carlos’s Motion for Partial Summary Judgment [35], and 

GRANT Patenaude & Felix’s Partial Motion for Summary Judgment [31]. 

The first event that tolled the statute of limitations occurred when Capital One accepted 

Plaintiff’s third party debt management agency plan on April 11, 2007. By accepting Plaintiff’s 

third party plan, Capital One agreed to suspend its right to sue on the past-due balance of 

Plaintiff’s account so long as Plaintiff’s account did not go more than sixty days without 

payment pursuant to the third party plan agreement. Plaintiff made his last payment under the 

third party plan on December 29, 2007. The statute of limitations began to run again sixty days 

later on February 27, 2008, when Capital One regained its right to sue Plaintiff. The statute of 

limitations was tolled for 322 days between April 11, 2007 and February 27, 2008. 

The second event that tolled the statute of limitations was a previous lawsuit filed against 

Mr. Carlos to collect on the underlying debt. Capital One filed this suit on August 6, 2009 and it 

was dismissed without prejudice on March 4, 2010. Under Virginia law, the limitations period 

does not include the time during which another action is pending if the prior action is dismissed 

without determining the merits. Va. Code § 8.01-229 E(1). Because this lawsuit was previously 

dismissed without determining the merits, it tolled the statute of limitations for 210 days between 

August 6, 2009 and March 4, 2010. 

Because Patenaude & Felix filed its July 19, 2013 collection action before the statute of 

limitations had run, I DENY Mr. Carlos’s Motion to Certify Class [24], DENY Mr. Carlos’s 

 

1 August 17, 2013 was a Saturday. Virginia law provides that where an action prescribed by law must be 

taken by a date that falls on a Saturday, Sunday, or legal holiday, the action may be taken the next court day. See Va. 

Code § 1-210. Therefore, the statute of limitations would have run on Monday, August 19, 2013. 

Case 3:14-cv-00921-MO Document 56 Filed 09/14/15 Page 2 of 3
3 – OPINION AND ORDER

Motion for Partial Summary Judgment [35], and GRANT Patenaude & Felix’s Partial Motion for 

Summary Judgment [31]. IT IS SO ORDERED. 

DATED this 14th day of September, 2015. 

/s/ Michael W. Mosman____ 

MICHAEL W. MOSMAN

United States District Judge

Case 3:14-cv-00921-MO Document 56 Filed 09/14/15 Page 3 of 3