Martin v. Law Offices of Howard Lee Schiff, P.C.

Filing 22

OPINION AND ORDER granting 18 Motion for Summary Judgment. So Ordered by Judge William E. Smith on 9/16/13. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
TERI L. MARTIN,
)
Plaintiff,
)
)
v.
)
C.A. No. 11-484 S
)
LAW OFFICES OF HOWARD
)
LEE SCHIFF, P.C.,
)
Defendant.
)
___________________________________)
OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Plaintiff Teri L. Martin filed this class action lawsuit
against

the

Law

Offices

of

Howard

Lee

Schiff,

P.C.

(the

“Defendant”) for alleged violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, et. seq.

Pending

before this Court is an unopposed motion for summary judgment
filed

by

Defendant.

For

the

reasons

discussed

herein,

Defendant’s motion for summary judgment is GRANTED.
I.

Facts 1
In July 2006, Plaintiff completed an online application to

Capital One Bank (“Capital One”) for a credit account.
1

(Def.’s

The factual history necessarily draws heavily on
Defendant’s version of events.
Specifically, it derives from
Defendant’s memorandum of law in support of its motion for
summary judgment (ECF No. 19), and two other ancillary documents
filed concurrently with the motion for summary judgment: (1)
Defendant’s statement of material facts (ECF No. 20) and (2) the
declaration of Richard A. Napolitano, an agent of Capital One
Bank (USA), N.A. (ECF No. 21).
Plaintiff has not opposed the
motion for summary judgment and has not filed any objections
with respect to the two ancillary documents. As such, the Court
deems Plaintiff to have admitted the contents of Defendant’s
statement of material facts. (See LR Cv 56(a)(3).)

Statement of Material Facts (“SMF”) ¶ 1, ECF No. 20.)

In doing

so, Ms. Martin provided her electronic signature, acknowledging
receipt

of

Capital

One’s

customer

agreement

(the

“Customer

Agreement”), and agreeing to be bound by the terms contained
therein.

(Id. at ¶¶ 2-3.)

The Customer Agreement included a

governing law provision designating Virginia law as controlling. 2
(Ex. C to Decl. of Richard A. Napolitano, ECF No. 21-3.)
Capital One approved Ms. Martin’s application and sent her
a credit card.
wallet,

Ms.

(SMF at ¶ 5.)

Martin

Leaving no doubt what was in her

accumulated

a

balance

$22,285.65 between July and November 2006.

on

the

card

(Id. at ¶ 7.)

of
Her

last payment posted to the account in October 2006, and this
sizable balance remained outstanding.

(Id.)

Four years later,

in October 2010, after receiving authorization from Capital One
to do so, Defendant filed a collection suit against Ms. Martin

2

The choice of law provision provides, in relevant part:
“This Agreement is to be construed in accordance with and
governed by the laws of the United States of America and by the
internal laws of the Commonwealth of Virginia without giving
effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the laws
of the United States of America or the internal laws of the
Commonwealth of Virginia to the rights and duties of the
parties.”
2

on behalf of Capital One.
Rhode Island. 3

This suit was filed in state court in

(Id. at ¶ 8.)

In response, Plaintiff initiated this class action lawsuit
against Defendant, alleging that the collection lawsuit against
her

had

been

Virginia’s

knowingly

three-year

commenced
statute

after

of

expiration

limitations

agreements, thereby violating the FDCPA.
1.)

the

for

of
oral

(See Compl., ECF No.

Defendant moved for dismissal, arguing that Rhode Island’s

ten-year statute of limitations applied.

(See Mot. to Dismiss,

ECF No. 5.)
On

December

10,

2012,

United

States

Magistrate

Judge

Lincoln D. Almond issued a Report and Recommendation (“R&R”)
concluding that Virginia law controlled and recommending that
Defendant’s motion to dismiss be denied.

(ECF No. 9.)

This

Court accepted Judge Almond’s R&R in an Order dated February 7,
2013.

(ECF No. 16.)

Although concluding that resolution of the issue would have
been premature at the time, Judge Almond aptly noted in his R&R
that whether Capital One’s Customer Agreement was a written or
oral contract would be outcome determinative, given the fact
that

Virginia

limitations
3

for

law
oral

provides

for

contracts,

a
but

three-year
a

five-year

statute

of

statute

of

Although Ms. Martin had been a resident of Oklahoma at the
time that she completed the credit card application, she had
subsequently relocated to Rhode Island and was living there at
the time that Defendant filed its collection suit against her.
3

limitations for written contracts. 4

(See R&R 9.)

Were the

Customer Agreement to be deemed a written contract, Judge Almond
noted, the collection lawsuit against Ms. Martin would have been
timely

filed,

undermining

violated the FDCPA.
instructed

Judge

her

(Id.)

Almond

argument

that

Defendant

had

In accepting the R&R, this Court

to

establish

a

deadline

for

limited

discovery and the filing of a dispositive motion on the issue of
whether

the

Customer

Agreement

constituted

unwritten contract under Virginia law.

a

written

or

Thereafter, Defendant

filed its motion for summary judgment, arguing that the Customer
Agreement
Virginia’s

was

a

written

five-year

contract

statute

of

and

therefore

limitations.

subject

(ECF

No.

to

18.)

Plaintiff did not respond.
II.

Discussion
Summary judgment is appropriate when, viewing the record in

the light most favorable to the non-moving party, there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.

See Fed. R. Civ. P. 56; see

also Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir.
2009).

4

The applicable provision of Virginia law reads in relevant
part as follows: “In actions on any contract which is not
otherwise specified and which is in writing and signed by the
party to be charged thereby, or his agent, [the action must be
brought] within five years . . .”
Va. Code Ann. § 8.01-246(2)
(2013).
4

In the instant case, Plaintiff does not dispute Defendant’s
contention that the Customer Agreement was a written contract.
Indeed, Ms. Martin’s affixing of her electronic signature to the
Customer Agreement and her simultaneous acceptance of its terms
was

not

an

oral

agreement.

written, electronic form.

Rather,

it

was

memorialized

in

(See Ex. A to Decl. of Richard A.

Napolitano, ECF No. 21-1.)
The conclusion that the Customer Agreement was a written
contract

is

further

supported

by

the

fact

that

Virginia

has

adopted the Uniform Electronic Transactions Act, permitting the
use of electronic signatures in electronic transactions.

See

Va. Code Ann. §§ 59.1-480, 59.1-483 and 59.1-485. Consistent
with

this

Virginia

view,

the

Attorney

issued

an

advisory

General

of

opinion

the

in

Commonwealth

2011,

stating

of
in

pertinent part:
It is my opinion that the statute of limitations for
written contracts applies to credit card agreements in
the situation where the agreement consists of a series
of documents, provided that at least one of the
documents referencing and incorporating the others is
signed by the cardholder, and also provided that the
written documents evidencing the agreement contain all
essential terms of the agreement.
Op.

Att’y

Gen.

of

the

Commonwealth

of

Va.

(Feb.

7,

2011).

Finally, it should be noted that Virginia courts have taken the
position that use of a credit card by the cardholder constitutes
acceptance of the terms of an underlying cardholder agreement.

5

See, e.g., Bank of Va. v. Lenz, 8 Va. Cir. 407, *1 (Va. Cir. Ct.
1987).
III. Conclusion
For the reasons stated above, the Customer Agreement that
Plaintiff

signed

electronically

in

July

2006

was

a

written

contract subject to Virginia’s five-year statute of limitations.
The

collection

lawsuit

filed

by

Defendant

in

October

2010

against Plaintiff was therefore commenced within the applicable
statute of limitations, negating the legal premise underlying
Plaintiff’s

FDCPA

claim.

Defendant’s

judgment is GRANTED.

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: September 16, 2013

6

motion

for

summary