Friday, July 12, 2013

Account Stated Theory as an alternative to Breach of Contract as a cause of action in debt collection

The theory of "Account Stated" as an alternative to "Breach of Contract" as a cause of action in credit card debt suits 

Account stated is a common-law theory that some Texas courts of appeals have modified and adapted so that it is now available for collection of a credit card debt also.

A party is entitled to relief under the common law cause of action for account stated when (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness.

Suits on account (including suits on sworn account) have their origin in sales transactions whereby goods or services were provided on credit by the merchant/seller followed by the purchaser‘s failure to make payment as promised.  The principal significance of the extension of one variety of suits of account (account stated) to the credit card business is that the bank or its assignee need not prove the terms of the underlying contract because proof of an underlying contract is not an element of the account-stated cause of action. What the claimant must show is the Defendant’s agreement to pay a certain amount that represents the final balance of prior transactions (hence “stated”), but courts have held that the agreement can be imputed on the recipient of a billing statement that he or she did not dispute.

The fact that credit card issuers do not sell goods is no longer material under the newer line of appellate cases (although it still precludes financial institutions and credit card debt buyers from bringing sworn account suits under Rule 185 of the TRCP). Not all Texas courts of appeals have signed on the revamped theory of account stated, but that could be due to a mere absence of a case that presented that issue.   

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