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Found this case for texas members it may help all though


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Here is some more TX case law, hope it helps all

4. In Lynda K. Morrison, Appellant v. Citibank (South Dakota) N.A. Appellee, Court of Appeals, Second District of Texas Fort Worth No. 2-07-130-cv, the Court stated: “Considering all of the evidence of Morrison’s payment history involving a pattern of minimum monthly payments; the fact that the unpaid statements were mailed to her but, the trial court found, it was unknown whether she received them or not; and her failure to dispute any of the statements, we conclude that the evidence is fatally weak on the second element of account stated (an agreement, express or implied, between the parties fix[ing] an amount due). The statements show that, when she was making payments, Morrison regularly paid only a fraction of the full balance claimed to be due. Further, Morrison’s failure to dispute the final statements, combined with the trial court’s finding that Citibank did not know whether Morrison received the statements, is very weak evidence on the question of whether she agreed to pay the amount claimed in the final statements.”

In Jaramillo v. Portfolio Acquisitions, LLC, Tex: Court of Appeals, 14th Dist. 2010, the Court stated: “In McElroy v. Unifund CCR, a similar credit card debt collection case, this court held the evidence was insufficient to support the existence of a valid contract. McElroy v. Unifund CCR Partners, 2008 WL 4355276 (Tex. App.-Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op.). In McElroy, the creditor's evidence supporting a contract consisted of: (1) an affidavit of an employee of the creditor; (2) a signature card for the account; (3) an affidavit of an employee of the assignor of the account; and (4) more than a dozen monthly account statements. Id. at *2. This court likened the evidence in McElroy to that in Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231 (Tex. App.-Houston [1st Dist.] 2008, no pet.). In Williams, the First Court of Appeals held that a creditor failed to establish the existence of a contract when it failed to produce the actual agreement or any other document that established the agreed terms, including the applicable interest rate or method for determining the applicability and amount of finance charges.”

In Jack Tully, Appellant, v. Citibank (South Dakota), N.A., Appellee.No. 06-05-00027-CV.Court of Appeals of Texas, Texarkana, the court stated: “Even if no other maximum rate is established elsewhere in the laws of South Dakota, Citibank has failed to show that the interest rate is authorized. When no interest rate is provided in the agreement, South Dakota law limits the maximum interest rate to considerably less than the rates charged by Citibank. See S.D. Codified Laws §§ 51A-12-13, 54-3-4, 54-3-5 (2005). We note that a credit card issuer may change the terms of the card agreement on sufficient written notice to the cardholder. S.D. Codified Laws § 54-11-10 (2005). The summary judgment evidence, though, contains no written notices specifying the interest rates other than the copies of the statements. There are genuine issues of material fact concerning whether the interest rates Citibank charged Tully are authorized by South Dakota law.”

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After this case and Williams v Unifund in 2009, the use of sworn account became uncommon in credit card cases. The new flavor to replace it was Account Stated.

Here is a great reference for anyone being sued in Texas. It is dated April 15, 2009, and in it, the author, Craig Jordan, notes that Account Stated should not be used for credit cards. However, subsequent court rulings in a variety of jurisdictions in Texas held that Account Stated was appropriate for credit cards (other parts of the document still make it quite worthy):

http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

Mr Jordan's associate, Jessica Lesser, wrote an update dated August 18, 2011 that discusses Account Stated in Texas further (link found by MamaCaldo):

http://warybuyer.com/wp-content/uploads/2011/10/How-To-Defend-a-Credit-Card-Case.pdf

Both references are must reads for someone defending a credit card case in Texas.

Edited by Tex_Tea
Add date to Lesser doc
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