COMPLAINT - 1

Bret Knewtson, OSB 03355

Bret Knewtson, Esq

3000 NW Stucki PL STE 230-M 

Hillsboro OR 97124

Telephone: (503) 846-1160 

Facsimile: (503) 922-3181

bknewtson@yahoo.com 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON (PORTLAND)

KIRK J NYBERG, 

Plaintiff,

vs.

PORTFOLIO RECOVERY ASSOCIATES, 

LLC.,

Defendant

Case No. 3: 15-cv-1175

COMPLAINT

Violation of 15 USC § 1692 (FDCPA)

Jury Trial Requested

PRELIMINARY STATEMENT

1. This is an action for money damages brought by a consumer pursuant to the Fair Debt 

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq, which prohibits abusive, 

deceptive and unfair debt collection practices and other tort claims.

2. Plaintiff’s claims arise from defendant’s attempts to collect a debt in Oregon through the 

means and instrumentalities of interstate commerce and the mails.

3. Plaintiff requests a jury trial.

JURISDICTION

4. Jurisdiction of this Court arises under 15 U.S.C. § 1692k(d).

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5. Venue is proper in this District under 28 U.S.C. § 1391 because the acts and transactions 

occurred here, Plaintiff resides here, and Defendants transacts business here.

PARTIES

6. Plaintiff Kirk Nyberg is a natural person who resides in Washington County and the State of 

Oregon and is a consumer as that term is defined by 15 U.S.C. § 1692a(3). 

7. Defendant Portfolio Recovery Associates, LLC (hereinafter “PRA”) is a limited liability 

company organized under Delaware law, and does business in Oregon. Defendant PRA’s 

principal place of business is located at 120 Corporate BLVD STE 100 Norfolk VA 

23502. PRA has elected Corporation Service Company as its Oregon registered agent, 

located at 285 Liberty ST NE Salem OR 97301.

ALLEGATIONS

8. Defendants uses the instrumentality of interstate commerce or the mails in a business the 

principal purpose of which is the collection of debts. 

9. Defendant uses the instrumentality of interstate commerce to regularly collect or attempt to 

collect, directly or indirectly, debts owed or due or asserted to be owed or due others.

10. Defendant is a debt collector as that term is defined at 15 USC 1692a(6).

11. On June 25, 2014 defendant filed a lawsuit in Washington County, in the state of Oregon, 

captioned Portfolio Recovery Associates LLC v Kirk Nyberg, #C143752CV. The lawsuit 

alleged Capital One Bank USA NA (Cap1) had mailed monthly statements to Plaintiff and

Plaintiff had failed to object or otherwise dispute those statements and that had established a 

stated balance. It alleged plaintiff agreed to pay Cap1 and had failed to do so and $834.25 

was owed to Cap1. 

12. That lawsuit was dismissed by the Circuit Court of Washington County. 

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13. Given an opportunity for discovery, plaintiff believes that the evidence will show that the 

allegation was false because defendant had no evidence to establish such an account stated. 

The periodic statements would never evidence any conferral or agreement between Cap1 

and Plaintiff that could support such a claim. As a matter of law, an implied contract, such 

as an account stated implied by the silence or failure of a party to dispute the stating of the 

account, cannot negate an express contract. Cap1 and plaintiff had an express contract which 

is evidenced by the card holder agreement which governed the contractual relationship of 

Cap1 and plaintiff as well as the purpose of the periodic statements. The contract, likely,

will not identify any right by Cap1 to assert an account stated in the absence of a card holder 

dispute to a periodic statement.

14. Defendant sought to collect a debt that was barred from suit by the applicable Virginia 

Statute of limitations. The attempt to collect the debt by alleging an account stated in light of 

an enforceable contract between Cap1 and plaintiff was unfair, abusive, false, deceptive and 

misleading because defendant attempted to use the theory of account stated to by-pass the 

applicable statute of limitations, provided by Virginia, which would be a complete defense 

to the debt.

15. Defendant’s conduct in bringing an unlawful debt collection demand against plaintiff 

disturbed plaintiff and caused anxiety, sleeplessness, nervousness, anger, embarrassment, 

humiliation, and frustration and emotional distress. 

16. Plaintiff incurred liability for attorney fees in defending the attempt by defendants to collect 

the unlawful amount.

FIRST CLAIM FOR RELIEF: VIOLATION OF FDCPA

17. Plaintiff incorporates by reference all of the above paragraphs of this complaint as though 

fully stated herein.

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COUNT ONE

18. The attempt to collect a debt by asserting it was an account stated when that theory was not

viable is a violation of at least one, if not more, provisions of the Fair Debt Collection 

Practices Act, 15 U.S.C. §§ 1692d, 1692e, 1692e(2), 1692e(5), 1692e(10), 1692f, and 

1692f(1). 

COUNT TWO

19. Asserting an account stated theory of law on a credit card debt in order to bypass the statute 

of limitations and other defenses to the debt that arise out of the contract between the 

plaintiff and Cap1 and which controls the credit card debt is a violation of at least one, if not 

more, provisions of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692d, 1692e, 

1692e(2), 1692e(5), 1692e(10), 1692f, and 1692f(1).

COUNT THREE

20. Defendant’s attempt to collect a debt, by filing a lawsuit on a debt that was barred by the 

applicable statute of limitations is a violation of at least one, if not more, provisions of the 

Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692d, 1692e, 1692e(2), 1692e(5), 

1692e(10), 1692f, and 1692f(1).

DAMAGES

21. As a result of Defendant’s violation of the FDCPA, Plaintiff has statutory damages in an 

amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A).

22. Actual damages for emotional distress, and an unknown amount of attorney fees that 

continue to accrue as plaintiff defends the unlawful collection attempt pursuant to 15 U.S.C. 

§ 1692k(a)(1).

23. Plaintiff is entitled to reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 

1692k(a)(3) from defendant.

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COMPLAINT - 5

WHEREFORE, Plaintiff prays that judgment be entered against defendant for:

• for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A);

• for an award of actual damages determined pursuant to 15 U.S.C. §1692k(a)(1).

• for an award of costs of litigation and reasonable attorney’s fees incurred in stopping the 

illegal collection action and in prosecuting this case, pursuant to 15 U.S.C. § 1692k(a)(3);

Dated this May 22, 2015

/s/ Bret Knewtson

Bret Knewtson, OSB 033553

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