Some courts of
appeal in Texas, but not all, have held that a credit card debt suit can be
brought as an open account suit. One court reasoned that “a credit card debt
may be considered an open account because, under a credit card
agreement, the terms of repayment remain subject to modification, and the
parties exchange credits and debits until either party settles the balance and
closes the account.”
The treatment of a credit card debt claim as an “open account” claim is, however, controversial, and is subject to serious disagreement because traditionally suits on account involved sales transactions. Additionally, there are numerous recent appellate opinions that expressly say that a credit card debt claim cannot be brought as a sworn account claim.
But a sworn account
suit is merely a special form of common-law suit on account. Numerous appellate opinions from various courts around Texas hold that a sworn account
suit is not proper for the collection of a credit card (bank) debt because the
creditor did not sell goods or services to the customer. That applies to credit
card banks generally.
It is also well-established
that a suit on sworn account under Rule 185 is not an independent cause of
action, but merely a different way to plead a suit on account. Therefore, the
substantive elements of a sworn account suit (which include underlying sales
transactions) cannot logically be distinguished from a common-law suit on
account. The difference is procedural and involves the form of the evidence necessary to establish the plaintiff's right to judgment.
Additionally, if
the defendant in a sworn account suit files a sworn denial, the plaintiff loses
the procedural and evidentiary benefits of bringing the suit under Rule 185
(sworn account rule), and must prove the essential elements of the suit on account
in the traditional manner. One of those elements is the sale of goods or
services.
Until the split of appellate
authorities is resolved, the validity and viability of the open account theory is questionable. Whether or not an open account
suit will succeed independent of a breach-of-contract claim may well depend in which
appellate district the lawsuit is filed, and whether the defendant challenges the theory
in the trial court and on appeal, if there is one.
Courts of appeals
often decline to consider an otherwise worthy legal argument (or basis for reversal) if it is not
properly briefed. Even one of the appellate courts that approved the open
account theory noted that the consumer had not argued that “open account” is
the equivalent of “sworn account”, which the court recognized as being prohibited for
credit card debt collection.
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