Conway v. Portfolio Recovery Associates, LLC

Filing 16

MEMORANDUM OPINION & ORDER: 1. Defendant PRAs Motion to Dismiss 7 is DENIED; and 2. Plaintiff Conways Motion to Strike 11 is DENIED as MOOT. Signed by Judge Gregory F. Van Tatenhove on 3/31/2014. (CBD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
SEAN CONWAY,
Plaintiff,

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Civil No. 13-07-GFVT

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V.
PORTFOLIO RECOVERY
ASSOCIATES, LLC,
Defendant.

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MEMORANDUM OPINION

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&

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ORDER

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*** *** *** ***

This matter is before the Court upon the Motion to Dismiss [R. 7] filed by Defendant
Portfolio Recovery Associates, LLC, and the Motion to Strike filed by Plaintiff Sean Conway,
[R. 11] which is related to the Reply brief associated with the Motion to Dismiss. As will be
explained below, this case turns on where the breach of contract to pay a debt occurred. Conway
argues that the contract was breached in the location where the payment was supposed to be
received (Virginia), while PRA contends that the breach occurred when and where Conway
made the decision not to pay his debt (presumably Kentucky). For the reasons set forth herein,
both motions are DENIED.
I
The relevant factual background is the same for both motions. The Defendant, Portfolio
Recovery Associates, LLC (“PRA”), filed suit against Sean Conway in Shelby District Court of
Shelby, Kentucky, on March 28, 2012, seeking to collect an alleged debt on a credit card. [R. 1
at 2; R. 8 at 2.] At all times relevant to this dispute Conway was a citizen and resident of Shelby
County, Kentucky. [R. 7 at 2.] Capital One Bank (USA), N.A. (“Capital One”) issued a credit

card to Plaintiff Conway in September, 2006, and Mr. Conley subsequently used the credit card
to make personal purchases. [R. 7 at 2.] Conley made his last payment on his Capital One credit
card on February 29, 2008, [R. 1-1 at 3] and failed to make the next payment in March, 2008, or
any further payments afterward. In October, 2008, Capital One charged off Conway’s balance of
$1,288.89. PRA then purchased Conway’s account from Capital One on November 17, 2008.
The parties do not dispute that PRA is the legitimate assignee of Capital One, thereby retaining
all claims and defenses against Conway that Capital One would have had. [See R. 7 at 2; R. 8 at
2.] The parties also do not dispute that PRA acquired Capital One’s cause of action against
Conway, nor do they dispute that this cause of action accrued no later than late March, 2008, and
no earlier than February 29, 2008. [See R. 8 at 2, 5.]
In March, 2012, approximately four years after PRA’s cause of action against Conley
accrued, PRA filed a debt collection lawsuit against Conley in district court in Shelby County,
KY. On October 18, 2012, the parties filed a Joint Stipulation of Dismissal in Shelby District
court, dismissing all claims against Conway. Conway then filed suit in this Court, alleging that
PRA had violated the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. §§1692 et seq.
by bringing a collection suit against Conway that was time-barred by the statute of limitations.
[R. 1.] Conway also brings this suit on behalf of all other persons in Kentucky similarly situated.
Conway’s complaint seeks statutory damages for the alleged violation of the Act, attorney’s fees,
litigation costs, and any other relief the Court deems appropriate.
PRA has filed a motion to dismiss Conway’s claims pursuant to Fed. R. Civ. P. 12(b)(6),
contending that Conway has failed to state a claim upon which relief may be granted because
Conway relies upon the Virginia statute of limitations instead of Kentucky’s statute. According

2

to PRA, there has been no violation of the FDCPA because PRA brought the collection suit
against Conway within Kentucky’s five-year statute of limitations, and thus the suit was not
time-barred. [R. 7 at 1-3.] Conway responded by arguing that Kentucky’s borrowing statute is
applicable in this case, and that under Kentucky’s borrowing statute, Virginia’s three-year statute
of limitations should apply instead of Kentucky’s. Thus, the issue before the Court is whether
Kentucky’s borrowing statute requires the application of Kentucky’s or Virginia’s statute of
limitations. Because Conley’s complaint is based entirely on the premise that PRA brought a
time-barred collection suit against him, if PRA’s suit was within the statute of limitations, then
Conway has failed to state a claim that can survive a 12(b)(6) motion.
II
A
In a motion to dismiss brought pursuant to Rule 12(b)(6), “[t]he defendant has the burden
of showing that the plaintiff has failed to state a claim for relief.” DirecTV, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991)).
When reviewing a Rule 12(b)(6) motion, the Court “construe[s] the complaint in the light most
favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all inferences in favor of
the plaintiff.” Id. (citation omitted). Such a motion “should not be granted unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Id. (quoting Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004)). The
Court, however, “need not accept as true legal conclusions or unwarranted factual inferences.”
Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)).
Moreover, the facts that are pled must rise to the level of plausibility, not just

3

possibility— a complaint containing “facts that are merely consistent with a defendant’s liability
. . . stops short of the line between possibility and plausibility.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal
quotation marks omitted)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
B
The purpose of the FDCPA is to prevent “the use of abusive, deceptive, and unfair debt
collection practices” used “by many debt collectors.” 15 U.S.C. §1692(a). Conley’s complaint
alleges that PRA has violated §1692f(1) and §1692e(5) of the Act by attempting to collect a debt
that was barred by the statute of limitations. These sections prohibit debt collectors from using
“any false, deceptive, or misleading representation” in collecting the debt, including a “threat to
take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C.
§1692e(5). According to §1692f, a debt collector “may not use unfair or unconscionable means
to collect or attempt to collect any debt,” which includes a prohibition on collecting any debt that
is not “expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C.
§1692f(1). Conley’s complaint alleges that bringing a collection suit barred by the statute of
limitations falls into one or both of these categories.
When evaluating whether a debt collector’s particular action falls within the meaning of
the FDCPA, “courts apply an objective test based on the understanding of the least sophisticated
consumer.” Harvey v. Great Seneca Financial Corp., 453 F.3d 324, 331 (6th Cir. 2006) (internal
quotations omitted). Although the Sixth Circuit has not definitively ruled on exactly how

4

attempts to collect time-barred debts fit within the framework of the FDCPA, there is broad
agreement among other courts that the filing of a lawsuit to collect a time-barred debt may
constitute a violation of various portions of §1692e, if the debt collector knows or should have
known that the debt is time-barred, largely because doing so is deceptive to the unsophisticated
consumer. Id. at 332 (citing Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th
Cir. 2001)); Goins v. JBC & Assoc., 352 F.Supp.2d 262 (D. Conn. 2005); Shorty v. Capital One
Bank, 90 F.Supp.2d 1330 (D.N.M. 2000); Kimber v. Fed. Fin. Corp., 668 F.Supp. 1480 (M.D.
Ala. 1987)). See also Hall v. LVNV Funding, LLC, 2013 WL 5550838, at*2 (W.D. Ky. Oct. 8,
2013); Brewer v. Portfolio Recovery Assocs., 2007 WL 3025077, at *2 (W.D. Ky. Oct. 15,
2007); Lashbrook v. Portfolio Recovery Assocs., LLC, 2013 WL 4604281, at *8 (E.D. Mich.
Aug. 29, 2013).
Here, the parties do not dispute that Conway breached his contract with Capital One and
is a “debtor” within the meaning of the FDCPA, nor do they dispute that PRA has the right to
collect on that debt as a “debt collector” and is therefore bound by certain requirements of the
FDCPA. Instead, the parties’ primary dispute at this juncture is whether the debt collection
action was time-barred by the applicable statute of limitations because if the state court suit was
in fact not barred by the statute, then Conley’s claim should be dismissed.
III
A
Conway first argues that for statute of limitations purposes, an action concerning the
collection of a credit card debt should be treated as an unwritten contract, rather than a written
contract. Despite a lack of controlling precedent on this issue in Kentucky, many other

5

jurisdictions commonly treat credit card agreements as contracts not in writing, because such
agreements typically do not contain on their face all the essential terms necessary to constitute a
written contract. [R. 8 at 6-13.] See, e.g., Portfolio Acquisitions, LLC v. Feltman, 909 N.E.2d
876, 883-84 (Ill. App. 2009) (applying statute of limitations for an oral contract to a credit card
action because the credit card agreement did not include all essential elements within its four
corners); Delrey v. Capital One Bank, 2009 WL 5103229 (Fla. Cir. Ct. July 7, 2009) (examining
Virginia law in determining that Virginia’s statute of limitations for unwritten contracts should
apply to a Capital One credit card agreement because it did not on its face show a completely
concluded agreement). For an agreement to constitute a written contract “all its terms and
provisions can be ascertained from the instrument itself.” Mills v. McGaffee, 254 S.W.2d 716,
717 (Ky. 1953) (internal citations omitted). As in Delrey, Conway’s Capital One customer
agreement lacks several essential terms of a written contract, including Conway’s signature and
the applicable interest rate, among other things. [See R. 8-2.]
As PRA accurately points out, however, this question is not at issue in this case because
the following facts are undisputed: 1) PRA’s collection lawsuit was brought four years after the
cause of action accrued; 2) the applicable statute of limitations in Kentucky for actions on
accounts and unwritten contracts is five years, KRS 413.120(1), (10)-(11); 3) the applicable
statute of limitations in Virginia for unwritten contracts such as credit card agreements is three
years, Va. Code § 8.01-246(4); and 4) the Kentucky statute of limitations for written contracts to
pay money is fifteen years, KRS §413.090. Therefore, if Virginia’s three-year statute of
limitations applies, the suit is barred, while if either Kentucky statute applies, PRA’s suit was
well within both the five-year and the fifteen-year time periods, regardless of whether the debt is

6

considered a written or unwritten contract. Conway’s single allegation is that the collection suit
was barred by Virginia’s three-year statute of limitations, and thus if that three-year time limit is
not applicable to PRA’s state court suit, then Conway has no other claim before this Court.
Because this is undisputed, the Court need not engage in further analysis of whether the
agreement is an unwritten contract.
Because of the discrepancy in the two statutes, the Court next turns to the application of
Kentucky’s borrowing statute. Although the choice of law provision in the credit card agreement
specifies that Virginia law should govern the agreement wherever federal law does not apply,
“contractual choice-of-law clauses incorporate only substantive law, not procedural provisions
such as statutes of limitations.” Cole v. Mileti, 133 F.3d 433, 437 (6th Cir. 1998). Thus, unless
the choice of law provision in the parties’ agreement expressly provides otherwise, the
procedural law of the forum state will determine issues concerning which state’s statute of
limitations applies. Id. Accordingly, the Court will apply Kentucky’s borrowing statute in this
matter. The purpose of state borrowing statutes is generally to bar suits against the state’s
residents “if the right to sue [the resident] had already expired in another state where the
combination of circumstances giving rise to the right to sue had taken place. Moreover,
limitations on federally created rights to sue have similarly been considered to be governed by
the limitations law of the state where the crucial combination of events transpired.” Cope v.
Anderson, 331 U.S. 461, 466 (1947). The Kentucky statute of limitations borrowing statute
provides as follows:
When a cause of action has arisen in another state or country, and by the laws of
this state or country where the cause of action accrued the time for the
commencement of an action thereon is limited to a shorter period of time than
the period of limitation prescribed by the laws of this state for a like cause of
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action, then said action shall be barred in this state at the expiration of said
shorter period.
Ky. Rev. Stat. § 413.320. Thus, if the cause of action occurred outside of Kentucky, and if the
place where the cause of action accrued has a shorter statute of limitations for the particular
cause of action than Kentucky has, the shorter statute of limitations from the other jurisdiction
must be used instead of Kentucky’s statute. See Willits v. Peabody Coal Co., 188 F.3d 510, 1999
WL 701916 (6th Cir. Sept. 1, 1999) (unpublished table decision).
The parties do not dispute that Kentucky’s borrowing statute should be applied, nor do
they dispute how it should be interpreted. Instead, the parties primarily dispute where the cause
of action accrued, which is the “key factor” in any analysis of how to apply the borrowing
statute. White v. Hartford Life Ins. Co., 2008 WL 4104487, at *6 (W.D. Ky. Sept. 3, 2008). To
determine where a cause of action accrued, the Court must apply Kentucky law. See Cope v.
Anderson, 331 U.S. at 466-67 (applying state law to determine where a cause of action accrued
for purposes of that state’s borrowing statute). The problem in this case is that Kentucky law is
unclear concerning where a breach of contract action accrues.1 Although some lower Kentucky
courts have addressed similar questions, this exact problem has not yet reached the Kentucky’s
appellate courts so as to provide more definitive guidance. Other federal courts interpreting this
issue in the context of Kentucky law have not directly answered this question either in the
1

Defendant PRA states in its Motion to Dismiss that “it is well settled under Kentucky law” that a breach of contract
occurs, and therefore also accrues, in “the location where the decision was made not to make a payment” rather than
the location where the payment was to be received. [R. 7 at 5.] However, the notion that such a principle is “well
settled” is incorrect – on the contrary, such an issue is far from settled in Kentucky law, as the cases to which even
PRA cites make abundantly clear. In PRA’s motion, just before its statement about Kentucky law, PRA cites to a
case that says on the same page referenced by PRA that “there is little or no law in Kentucky concerning where a
breach of contract action accrues.” Willits, 1999 WL 701916, at *12. Other federal courts facing similar issues have
also stated that Kentucky law on this matter is unclear. See, e.g., Swanson v. Wilson, 423 F.App’x 587, 593 (6th Cir.
2011) (“‘Where’ a cause of action accrues, for purposes of Kentucky’s borrowing statute, is unclear.”).

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specific context of contractual obligations to pay a debt. See, e.g., Hall v. LVNV Funding, LLC,
2013 WL 5550838 (W.D. Ky. Oct. 8, 2013) (“The Court can find no Sixth Circuit opinion
directly on point.”).
When a federal court must apply substantive state law concerning an issue of first
impression, or an issue which that state’s courts have not comprehensively addressed or
definitively ruled on, it is the Court’s “duty. . . to decide unsettled issues of state law as a
Kentucky court would decide them.” Kelly v. McFarland, 243 F.Supp.2d 715, 717 (E.D. Ky.
2001) (citing Overstreet v. Norden Laboratories, Inc., 669 F.2d 1286, 1289-90 (6th Cir. 1982));
see also Ennes v. H&R Block Eastern Tax Servs., Inc., 2002 WL 226345, at *2 (W.D. Ky. Jan.
11, 2002) (citing the same). In doing so, the Court “must predict” how the state courts would
rule.2 Id.; see also Swanson v. Wilson, 423 F.App’x 587, 594 (6th Cir. 2011) (noting that in
“highly uncertain area[s] of state law,” federal courts must “make an educated ‘Erie guess’”)
(quoting Combs v. Int’l Ins. Co., 354 F.3d 568, 577 (6th Cir. 2004)). In the case at hand, this
requires a ruling on the narrow question of where the cause of action accrues, according to the
meaning of that concept in Kentucky’s borrowing statute.
While Kentucky appellate courts may not have addressed this in the specific context of
contractual payments on credit card debts, some helpful guidance can be found in relevant
caselaw concerning accrual in other contexts. For instance, when the “location of accrual is not
readily apparent,” other federal courts in this position have looked to when a cause of action
accrues, because the time of accrual is integrally related to the place of accrual. Swanson, 423
2

The Court notes that neither party has suggested that the Court abstain from ruling on this issue of law. The Court
also does not believe abstention would be proper here since the doctrine of abstention is “an extraordinary and
narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Cnty. of Allegheny
v. Frank Mashuda Co., 360 U.S. 185, 188 (1959).

9

F.App’x at 593; see also CMACO Auto. Sys., Inc. v. Wanxiang Am. Corp., 589 F.3d 235, 243 n. 7
(6th Cir. 2009) (stating that “the elements of time and place of accrual are inextricably
intertwined”); Willits, 1999 WL 701916, at *12. In determining when a cause of action accrues,
Kentucky courts in several cases have also looked to when the injury occurred. See, e.g., Meade
County Bank v. Wheatley, 910 S.W.2d 233, 235 (Ky. 1995) (“Without damages, there is no
ripened claim.”); Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121, 126 (Ky.
1994) (finding statute of limitations did not begin to run until damages were fixed because a
cause of action does not arise until there is an injury producing damages); Saylor v. Hall, 497
S.W.2d 218, 225 (Ky. 1973) (“A cause of action does not exist until the conduct causes injury
that produces loss or damage.”); Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 272 (Ky.
App. 2005) (holding that “without legally cognizable damages, there is no ripe claim. . .”).
Crucial to solving that mystery in this particular case, however, is whether the breach of contract
occurred at the moment when Conway made the decision not to pay his bill, or at the moment
that the deadline passed and Capital One knew that it had not received payment at the specified
location in Virginia. Both parties have advanced plausible and well-reasoned arguments in favor
of each position, but none of the cases the parties rely upon are exactly applicable to the facts
before us here, nor do they provide controlling authority on this issue.
However, a recent Kentucky Supreme Court case relied on the cases cited above in
addressing the issue of where a cause of action occurs. See Abel v. Austin, 411 S.W.3d 728, 736
(Ky. 2013). In Abel v. Austin, a case concerning deficient payments of settlement proceeds paid
to Kentucky residents who were appellants in a lawsuit in Alabama, Kentucky’s Supreme Court
was faced with a similar issue to the one at hand concerning whether Kentucky’s borrowing

10

statute required the application of Kentucky’s or Alabama’s statute of limitations. In applying
Kentucky’s borrowing statute, the court acknowledged that while “we have often discussed when
an action accrues, we have less frequently addressed the question of where, for purposes of KRS
413.320, the cause of action accrued.” Abel, 411 S.W.3d at 736. The court reiterated that where
an action accrues is “inextricably intertwined with when it accrues,” quoting the Sixth Circuit
opinion in Helmers v. Anderson to explain that “[t]he place where a cause of action arises is the
place where the operative facts that give rise to the action occur. . . . [I]t is the happening of the
last of such facts which brings the cause of action into existence.” 156 F.2d 47, 50 (6th Cir.
1946). The Abel court then cited to several Kentucky cases to establish that a cause of action
cannot exist “until the conduct causes injury that produces loss or damage,” Abel, 411 S.W.3d at
736 (quoting Alagia, 882 S.W.2d at 126), and that claims do not properly accrue “until
reasonably ascertainable damages are incurred.” Id. (quoting Pedigo v. Breen, 173 S.W.3d 260,
272 (Ky.App. 2005)). The Abel court used these cases to support its finding that the injury
occurred when the damages were ascertainable, which was when “the deficient payments were
received in Kentucky,” and therefore Kentucky was also where “the injurious consequences of
the alleged wrongful conduct occurred.” Id. at 737 (emphasis added).
The Court acknowledges at the outset that the specific facts of Abel are slightly different
from the case at hand because in Abel, both the deficient payments of the settlement distribution,
as well as the receipt of those deficient payments, occurred in Kentucky. However, the Court
must make its best prediction as to how Kentucky courts would decide the present case, see
Overstreet, 669 F.2d at 1289-90, and the reasoning in Abel therefore is still instructive and can
be applied to the present case. In Abel, one party wired a lump sum of the settlement money for

11

all the appellants to another party in Kentucky, who then distributed the settlement incorrectly to
the several appellants who resided in Kentucky. Abel, 411 S.W.3d at 731-32. The court rejected
the notion that the cause of action accrued in Alabama, where the lump sum was sent from. Id.
at 737. Instead, the court placed the most emphasis on the fact that the deficient payments were
received in Kentucky, because the receipt of the deficient payments meant that “the injurious
consequences of the alleged wrongful conduct occurred in Kentucky.” Id. (emphasis added).
Applying the same reasoning to the case at hand, the “injurious consequences” caused by
Conway’s failure to pay his credit card debt occurred in Virginia where Capital One was located
and expected to receive payment. See id. Moreover, because Conway never sent any payment at
all, the time and place of his failure to pay cannot be readily determined without referencing the
time and place where the payment was to be received.
This conclusion is further supported by other courts within the Sixth Circuit that have
determined accrual by focusing on the timing of the last event which triggers liability because a
cause of action “is the fact or combination of facts which gives rise to a right of action, the
existence of which affords a party a right to judicial interference in his behalf.” Helmers v.
Anderson, 156 F.2d 47, 50 (6th Cir. 1946) aff'd sub nom. Cope v. Anderson, 331 U.S. 461 (1947)
(quoting other sources of Ohio, Tennessee, and Fifth Circuit law). Thus, “it is the happening of
the last of such facts which brings the cause of action into existence.” Id. (emphasis added). In
Helmers, a decision which the Kentucky Supreme Court quoted extensively in Abel, the Sixth
Circuit focused on determining the time and location of the last act that allowed the plaintiff to
bring a lawsuit, explaining that such an act, “or the failure to act where there is a duty to do so,”
is “the critical event which transforms a potential liability” into a “presently enforceable” cause

12

of action. Id. at 50 (citing Brown v. O'Keefe, 300 U.S. 598, 603 (1937)). As in Conway’s case,
Helmers also involved a failure to pay an amount that was due, and in identifying the last act that
triggered accrual, the Sixth Circuit decided that the obligation to pay the assessment that was due
“must have matured” by the passage of time – i.e. by the passage of the date on which payment
was due. As the court in Helmers explained, “[t]he failure of the stockholder to pay on or before
the date set for payment. . . is accordingly the critical event which transformed the liability into
a cause of action. At that time and upon the happening of the last of those events the Statute of
Limitations began to run.” Id. at 51. Similarly, the last occurrence necessary for Capital One
(or PRA in Capital One’s place) to bring suit was the passage of the date on which payment was
due. Where Conway was physically located when he made the decision not to pay his debt is
indeterminable upon the facts presented, and therefore the event that triggered an ability to bring
a collection action against him was when the due date for payment passed, and continued to pass
without any payment being received. That event occurred in Virginia because Virginia is where
Conway was obligated to make his payment.
Particularly in the context of credit card agreements, the deadline for payment serves a
contractual purpose – that of alerting the credit card company that the consumer may have
defaulted on the debt and that they now have a possible cause of action against the consumer.
Conway’s credit card agreement stated that he would be in default if “you do not make any
payment when it is due,” thus making the due date material to the contract as the trigger of
breach. Indeed, the only way Capital One could know Conway had failed to make a payment
was when payment was not received on the due date. [See R. 8-2 at 5.] Thus, Capital One could
not have brought a lawsuit against Conley before the date on which payment was due had

13

passed.3 Because the due date passing without payment being received was the final event that
allowed Capital One’s cause of action to accrue, and was also the event that actually resulted in
damages to Capital One, the breach must have occurred when and where payment was not
received, which in this case was Virginia. See Helmers, 156 F.2d at 50-51; see also Portfolio
Recovery Assocs., LLC v. King, 927 N.E.2d 1059, 1061 (N.Y. 2010) (finding that breach of a
Discover credit card contract accrued in Delaware because it was “the place where Discover
sustained the economic injury,” and therefore New York’s borrowing statute applied with the
result of Delaware’s shorter statute of limitations governing the dispute); Hamid v Stock &
Grimes, LLP, 2011 WL 3803792 (E.D. Pa. Aug. 26, 2011) (determining that “the final
significant event” triggering statute of limitations for failure to pay a debt occurred in the place
where payment was to be received because damages occurred both when and where the creditor
did not receive payment on the date payment was due).
PRA relies on three cases in particular to support its proposition that the breach of a
contract to pay money accrues where the decision not to pay was made, which PRA assumes,
without any evidence, was made in Kentucky. These cases, however, are each distinguishable
from the case at hand.4 First, Willits v. Peabody Coal Co. actually supports the Court’s
reasoning explained above because when determining where a breach of contract action accrues,
the Sixth Circuit also looked to cases that analyzed the timing of accrual. See Willits v. Peabody
Coal Co., 1999 WL 701916, at *12 (6th Cir. Sept. 1, 1999) (table decision). For instance, the
3

Even if Conway had somehow alerted Capital One of his intention not to pay before the due date passed, Capital
One arguably would not have had a cause of action against him until that date had actually passed.
4

The Court also notes that none of the three cases PRA relies upon were decided by Kentucky courts or gave
definitive guidance concerning the interpretation of Kentucky law. As in this case, they were each decided by
federal courts making their best prediction of Kentucky law.

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court referenced Hoskins’ Adm’r v. Kentucky Ridge Coal Co., in which the court explained that
“[u]sually an action accrues at the time of infliction of a wrong or breach of a contract.” 305
S.W. 2d 308, 311 (Ky. 1957). The court in Willits further illustrated this rationale by quoting the
following from its prior opinion in Helmers v. Anderson:
The time when a cause of action arises and the place where it arises are
necessarily connected, since the same act is the critical event in each instance.
The final act which transforms the liability into a cause of action necessarily has
both aspects of time and place. It occurs at a certain time and in a certain
geographical spot.
Helmers, 156 F.2d at 51. Stated otherwise, accrual in contract actions occurs “when and where
the breach occurs and the injured party holds the right to sue.” Swanson, 423 F.App’x at 593-94
(quoting Willits, 1999 WL 701916, at *13). The reasoning in Willits thus supports the rationale
that causes of action accrue when the final act which allows a suit to be brought has occurred, an
act which necessarily includes both time and place.
Although the Willits court ultimately decided that breach occurred in the place where the
defendant miscalculated the payment rather than in the many locations where the plaintiffs
received the wrong payment amount, the court based its reasoning on facts that were almost
exactly the opposite of the facts in the present case. See Willits, 1999 WL 701916, at *13. The
Willits court expressly declined to rely on cases that found breach of contract occurred where the
damages were sustained precisely because each of those cases involved situations where
payments were required to be sent by a particular day to a particular location defined in the
contract,5 while in Willits one party was required to make multiple payments from one central

5

The cases distinguished by the Willits court are all more applicable to the case at hand because they involved
situations in which time and place of payment were material to the contract. See, e.g., Helmers, 156 F.2d at 51-52
(finding that breach occurred at location of receiver’s office where shareholders were required to pay their

15

location to several different parties in different locations. Id., at *13. The court found that
because the locations of the recipients “were immaterial to the obligation to pay,” it would be
highly impractical to decide that the breach occurred at all the many different locations where
multiple people received the wrong payment on several different days. Id. In contrast, Conway
was contractually required to make a payment to a particular location in Virginia by a certain
date, which he failed to do. Presumably, Capital One has similar agreements with multiple
customers in multiple locations, but receives payments from those customers at one central
location. It would be impossible for Capital One to know where any of those customers happen
to be when they decide not to pay. Rather, as a practical matter, the only way Capital One can
determine a customer is in default is when payment is not received at the central location in
Virginia by a certain date. Thus, the Court finds the Helmers case involving obligations of many
people to pay at one location to be more analogous to the case at hand than Willits, and
accordingly, the injury that gave rise to the cause of action occurred when and where Conway’s
payment was not received in the Virginia office.
PRA also urges the Court to rely on two other cases, Combs and White, which are both
distinguishable from Conway’s case as well. See Combs v. Int’l Ins. Co., 354 F.3d 568 (6th Cir.
2004); White v Hartford Life Ins. Co., 2008 WL 4104487 (W.D.Ky. Sept. 3, 2008). First, neither
case involved an action to collect on a credit card debt, or any allegations concerning the
FDCPA. Second, both cases were in federal court on the basis of diversity jurisdiction, and did

assessment but failed to do so); Bank of Boston Int’l v. Arguello Tefel, 626 F.Supp. 314, 317 (E.D.N.Y. 1986 (where
promissory note had language requiring payment to be made “at the head office of the First National Bank of
Boston, in Boston, Massachusetts”); Baker v. First Nat’l Bank, 603 P.2d 397, 398 (Wyo. 1979) (noting that the debt
was “to be paid in Colorado at a specified time” but was not then and there paid, and therefore the “cause of action
accrued at. . . the time and place where that is not done which ought to be done”).

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not involve definitive rulings on Kentucky law, which both courts admitted was very sparse
concerning where breaches of contract occur. Third, although the facts in White also involved
payment of a debt, White involved several other issues such as agency law and negotiable
instruments which are not implicated here, and the court in White merely “discuss[ed] but [did]
not rule on the statute of limitations issues.” Hall, 2013 WL 5550838, at *3 (quoting White,
2008 WL 4104487, at *1). Additionally, White is not binding on this Court since it is an
unpublished decision from another federal district court. Finally, Combs in particular is
unhelpful to the present analysis because it concerned the proper interpretation of Kentucky’s
borrowing statute, which is not disputed here, and it primarily analyzed the anticipatory breach
of an insurance contract, which is also not at issue in the instant case. See Combs, 334 F.3d at
598-602. In Combs, the defendant insurance company sent a message announcing its decision
not to pay money claimed on an insurance policy, and thus its decision not to pay was clearly the
action giving rise to the alleged breach of contract – a decision that was easily traced to a
particular time and place. See id. at 598-99. In contrast, the parties in the case at hand present
no arguments concerning anticipatory breach, nor can they establish with certainty when and
where Conway made a decision not to pay his credit card bill.6 Unless Conway sent Capital One
a message announcing his decision not to pay them, his situation is distinguishable from that in
Combs because it is nearly impossible to prove when and where Conway made a decision to
breach his contract. For Conway, both time and place were material to the fulfillment of his
contractual obligation – a fact which distinguishes his case from those that PRA relies upon.
6

PRA assumes this decision occurred in Kentucky, but what if Conway were vacationing in another state when he
made that decision, or what if he simply missed a payment and then was unable or unwilling to make further
payments long after the initial due date was past?

17

Moreover, Conway presents a policy argument which this Court believes supports a
plausible conjecture that other Kentucky courts would choose to apply the Virginia statute of
limitations even when the debtor is a Kentucky resident. As Conway points out, Capital One and
other credit card companies have taken advantage of Virginia’s laws in order to avoid
Kentucky’s stricter usury laws. However, in this sole aspect of a shorter statute of limitations,
Virginia law will actually be more favorable to Conway than Kentucky’s law – indeed, such a
result is actually one of the primary purposes for which borrowing statutes are enacted. See
Cope, 331 U.S. at 466. Several Kentucky trial courts also have given some indication that
Conway’s policy argument is not based purely on conjecture. For instance, a judge in Jefferson
District Court recently ruled on this same issue in LVNV Funding, LLC v. Hall, 12-C-013045
(Jefferson Dist. Ct. Order entered March 7, 2013).7 That court found that Kentucky’s borrowing
statute required the application of Virginia’s shorter statute of limitations for credit card debt and
dismissed LVNV’s debt collection suit because it was brought more than three years after the
cause of action accrued – an event the court apparently based on the date payment was due but
was not received.8 [R. 8-1 at 7-12.]

7

Although PRA contests that this issue was not fully briefed or considered in that case [R. 10 at 8], the plaintiff later
sued in federal district court on similar grounds as Conway has in the present case, and the federal court noted it had
no power to review the Jefferson District court’s decision to apply Virginia’s shorter statute of limitations. See Hall
v. LVNV Funding, LLC, 2013 WL 5550838, at *3.
8

The Court notes that PRA has also presented a trial court’s decision from Jefferson Circuit which did not apply
Kentucky’s borrowing statute, but the language in that decision implied that the parties had a signed agreement that
proof of mailing, or otherwise authorizing payment, was the act that discharged the debtor’s obligation rather than
the bank’s receipt of the payment – “[I]t is clear that the parties agreed that failure to pay the amounts owed, not the
failure to receive them, would constitute a breach.” First Resolution Investment Corp. v. Forsythe, 12-CI-06819
(Jeff. Cir. Ct. Order entered June 12, 2013). In contrast, the date and place of receiving payment appear to be
material to discharge Conway’s obligation.

18

Lastly, Conway has moved to strike a statement in PRA’s Reply asserting that Kentucky
trial courts have not substantively addressed the pertinent issues of this case. [R. 11 at 1-2.] In
support, Conway attached several exhibits attempting to show that these issues had been argued
at the Kentucky trial court level in at least two different cases. Because the Court did not need to
rely on those cases in reaching the decision explained above, the parties’ arguments concerning
those cases are irrelevant, and accordingly, the motion to strike will be denied.
IV
The parties are reminded that this is not the stage of litigation in which the Court must
determine whether PRA has actually violated the FDCPA. Here the Court merely finds that
Virginia’s statute of limitations applies to PRA’s debt collection against Conway, and therefore
Conway’s complaint has stated a plausible claim with sufficient detail to put PRA on notice of
the allegations against it. See Twombly, 550 U.S. at 557. Accordingly, and the Court being
sufficiently advised, it is hereby ORDERED as follows:
1.

Defendant PRA’s Motion to Dismiss [R. 7] is DENIED; and

2.

Plaintiff Conway’s Motion to Strike [R. 11] is DENIED as MOOT.

This the 31st of March, 2014.

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