Served with complaint from Texas JDB

[nailpounder]

I had been expecting this and finally got served yesterday with a complaint from a Texas JDB. The suit is based on an assigned credit card account. The complaint shows two claims: Breach of Contract and Stated Account. I'm not too concerned with defeating the breach of contract claim, but I'm more focused on the Stated Account claim. I have some general ideas on how to proceed with my answer, including a plea to the jurisdiction, and I have been studying the Texas case law concerning accounts stated. Here's the text of the Stated Account claim:

 

STATED ACCOUNT
1. Plaintiff's assignor and Defendant entered into a transaction in which Defendant was indebted to Plaintiff's assignor. Plaintiff's assignor and Defendant entered into an agreement fixing an amount due, which Defendant promised to pay. The transaction resulted in XXXXXX Assignee of XXXXXX Bank's Account XXXXXXXXXX0000.

2. Defendant failed to repay the debt per the agreement. After all just and due offsets and credits, Defendant owes Plaintiff the amount of $XXXXX.XX.

3. Plaintiff subsequently acquired all rights, title, and interest in indebtedness.

4. Plaintiff now seeks recovery of the amount owed.

 

 

I'd appreciate any input other forum members might have in putting together an answer. Thanks.

[cjtx]

It usually helps when you answer all the questions in the sticky so we get a better idea of your case and it also helps to know what proof they included with the complaint.

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

 

One of the important elements in an account stated case is whether or not you ever disputed the debt. Did you?

[racecar]

http://www.law.gonza...ction_Suits.pdf

http://www.txconsume...ses_2009_04.pdf

http://www.martindal...=asr-828238.pdf

http://webcache.googleusercontent.com/search?q=cache:mY_uF2yJX-4J:www.consumerlawoffice.com/Answer.pdf+&cd=1&hl=en&ct=clnk&gl=us

http://www.supreme.courts.state.tx.us/rules/trcphome.asp

http://www.supreme.courts.state.tx.us/rules/

 

Who is the original creditor.

Who is the law firm suing you.

When is the last time you paid on this account?

How long do you have to respond to the suit?

What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

‎

 

 

 

 

 

To prevail on a breach-of-contract claim, a plaintiff must prove (1) a valid contract existed between the plaintiff
and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant
breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant's
breach. West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.-Houston [14th Dist] 2008, no pet.).

In order to prevail on a breach of contract claim, a plaintiff must establish: "(1) the existence of a valid
contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the
defendant; and (4) damages sustained by the plaintiff as a result of the breach." Valero Mktg. & Supply Co. v.
Kalama Int'l, LLC, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist] 2001, no pet.); see also Bridgmon v. Array
Sys. Corp., 325 F.3d 572, 577 (5th Cir.2003); Henderson-Smith & Assocs., Inc. v. Nahamani Family Serv. Ctr.,
323 Ill.App.3d 15, 256 Ill.Dec. 488, 752 N.E.2d 33, 43 (2001).

 

The elements of a breach of contract claim are (1) the existence of a valid
contract between plaintiff and defendant, (2) the plaintiff's performance or
tender of performance, (3) the defendant's breach of the contract, and (4) the
plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.
 

CAUSE OF ACTION FOR "ACCOUNT STATED"

An account stated has been defined as an agreement 1) between two persons who
have had previous transactions, 2) fixing the amount due in respect of such
transactions and 3) promising payment.

Neil v. Agris, 693 S.W.2d 604 (Tex.App.- Houston [14th Dist.] 1985, no writ)
(citing H.G. Berning, Inc. v. Waggoner, 247 S.W2d 570 (Tex.Civ. App.- Beaumont 1952, no writ)

NOTE: This antiquated common-law theory of recovery is being revived credit card debt collectors to
avoid the need to proof up the original written card agreement (contract) which is often not available,
particularly for accounts opened more than seven years prior, or accounts that were sold and assigned
by the original creditor (i.e., the credit card issuer) to a debt collector.
Stated Account

A party is entitled to relief for a stated account where (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. Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex.App.-Dallas 2008, no
pet.);  Neil v. Agris, 693 S.W.2d 604, 605 (Tex. App.-Houston [14th Dist.] 1985, no writ); McFarland v.
Citibank (South Dakota), N.A., 293 S.W.3d 759, 763 (Tex.App.-Waco 2009, no pet.) (not yet reported).

 

[TomnTex]

It would also help to know who the JDB is and the amount approx. owed. TX has a four years SOL, where are you in regards to that.

[nailpounder]

Okay, here it all is.

 

1. Who is the named plaintiff in the suit? Integras Capital Recovery LLC Assignee Of First National Bank of Omaha

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Michael J. Adams PC (He's also registered with the Texas Secretary of State as the corporate agent for Integras. Basically the law firm and the JDB are one in the same. Same exact address for both. Just smoke-and mirrors incorporations.).

3. How much are you being sued for? $11,154.

4. Who is the original creditor? (if not the Plaintiff) First National Bank of Omaha

5. How do you know you are being sued? (You were served, right?) Served yesterday.

6. How were you served? (Mail, In person, Notice on door) Certified Mail RRR from district court clerk.

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? One demand letter from attorney, which I disputed and requested validation.

9. What state and county do you live in? Texas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) June 2010

11. What is the SOL on the debt? 4 years. It's still within the SOL.

12. What is the status of your case? Suit served? Motions filed?  Served yesterday. Called clerk and she said only the petition and required info sheet had been filed.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Debt doesn't appear on any of the three credit reports I looked at after receiving the demand letter in March.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes. Attorney sent me nine pages of Bills of Sale and Assignment from OC and three previous JDB's. Nothing with my name or account or anything referencing me. One mostly-blank page with a single entry that looked like it was a spreadsheet entry with my name address SS#, account #, etc. Showed an address that I haven't lived at since 1991. Showed my brother-in-law's cellphone number as my phone number. Nothing else on the page referencing any of the other documents.

15. How long do you have to respond to the suit? 20 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No attachments, no questionaire. Just Plaintiff's Original Petition with two claims--Breach of Contract and Stated Account.

[TomnTex]

Start reading this: http://www.creditinfocenter.com/community/topic/292720-start-to-finish-winning-against-midland-funding-aka-jdb/

 

and there is a lot more like it, just search for it. Most of your questions will be answered by researching.

[racecar]

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=+First+National+Bank+of+Omaha

http://www.adr.org/aaa/faces/home;jsessionid=j2PlRnVcYLnNLJWsscXp6HrBrKJNDjTKqhXT7tT9h0mmy9TFPJsr!-489583586?_afrLoop=2875375473008594&_afrWindowMode=0&_afrWindowId=null#%40%3F_afrWindowId%3Dnull%26_afrLoop%3D2875375473008594%26_afrWindowMode%3D0%26_adf.ctrl-state%3Dbvwv9c3pr_4

http://www.adr.org/aaa/faces/rules?_afrLoop=2875483346252350&_afrWindowMode=0&_afrWindowId=bvwv9c3pr_1#%40%3F_afrWindowId%3Dbvwv9c3pr_1%26_afrLoop%3D2875483346252350%26_afrWindowMode%3D0%26_adf.ctrl-state%3Dbvwv9c3pr_47

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

 

ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED.

 

Arbitration without an Administrator shall be conducted in accordance with the rules and procedures of the American Arbitration Association ("AAA") in effect when the Claim is initiated, with the Arbitrator taking the place of the AAA therein (also, the "Arbitration Rules"). For arbitrations without an Administrator, the Arbitrator(s) shall be mutually agreed upon by you and us.

 

We will reimburse you for the initial arbitration filing fee up to $350 upon receipt of proof of payment, provided that you have initiated an individualized proceeding in good faith and in accordance with this Agreement and provided that you have not initiated your proceeding in concert with any other cardmember(s). All other fees will be allocated in keeping with the applicable Arbitration Rules and applicable law. We will also advance or reimburse other fees if the Administrator or Arbitrator(s) determine there is good reason for requiring us to do so or if you ask us and we determine there is good cause for doing so. Each party will bear the expense of the fees and costs of that party’s own attorneys, experts, witnesses, documents and other expenses, regardless of which party prevails.

 

This arbitration provision shall survive repayment of your extension of credit, changes to your credit card account and this Agreement (although this provision itself may be changed in accordance with the Important Notice Regarding Changes in Terms provision), our assignment of your credit card account, the issuance of a new credit card, the transfer of the balance in one credit account to another, your or our termination of the credit card account and the bankruptcy (or similar proceeding) of any party.

 

 

                                           Don't mess with Texas

[nailpounder]

I'm not interested in arbitration. I've looked at other cases this JDB has filed and most of them ended in default judgements or nonsuits. I'm gonna make this sucker work for his dinner, should it come to that. I've done some pro se stuff in the past and don't have any problem putting paperwork together or doing the research. I live in the sticks about 350 miles away from this attorney's office. He's gonna have to do some traveling if this makes it to trial. I just need to find some good case citations and get some ideas on how to hammer this guy the hardest. I've been looking at the Dulong ruling and notice that for the first element of account stated it says: "transactions between the parties give rise to indebtedness of one to the other." It uses the plural "transactions" and not the singular "a transaction." The JDB's petition states "a transaction" in the singular form. Do you think that makes any difference? I've also formulated a Plea to the Jurisdiction which should force the JDB to prove the assignment. If he submits the same garbage to the court that he sent me, I think I stand a good chance of getting the court to strike it as irrelevant.

[shellieh98]

good news is there have been 3 previous assignements.  I can't help tonight, but if if no one else has chimed in by tomorrow, I will put my 2 cents worth in.  Your looking good depending on your rules and judge!

[texasrocker]

I don't know anything about that JDB or attorney.  What county are you in? 

If you are familiar with filing a plea to the jurisdiction and claiming a special exception to Account Stated then you are on the right track.  Include them with your answer.

Can you post the exact wording of the bill of sale?

[TomnTex]

Texrocker, where you been hiding lately? We've needed your expertise and help here lately. Hopefully, you will be around more often.

[nailpounder]

I don't know anything about that JDB or attorney.  What county are you in? 

If you are familiar with filing a plea to the jurisdiction and claiming a special exception to Account Stated then you are on the right track.  Include them with your answer.

Can you post the exact wording of the bill of sale?

I'm out in the boonies west of Lubbock. Hockley County. Yes, I'm preparing a plea to the jurisdiction and working on the special exception to account stated that's going in my answer. The Bill of Sale to Integras is from another JDB:

 

Exhibit C

 

ASSIGNMENT AND BILL OF SALE

 

Integras Capital Recovery LLC (hereinafter called "Purchaser) has entered into a Receivable Purchase Agreement dated February 28, 2013 ('Agreement") for the purchase of Accounts on Exhibit "A", hereof from BDO Financial LLC, (hereinafter called "Seller"), upon the terms and conditions set forth in that agreement.

 

NOW, THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to Purchaser, its successors, and assigns, all of Seller's rights, title, and interest in each and every one of the Accounts described in the Agreement.

 

That's it. Like I said above, nothing referencing me other than the attached single entry with my name address, account #, etc. But it didn't have any reference to what it pertained to, and had erroneous information such as an address I haven't lived at in 22 years and the cellphone number of my brother-in-law in Ohio who has nothing to do with anything related to me. So I'm waiting to see if they file an affidavit attesting to the accuracy of their records so I can hammer them on that as well.

[racecar]

http://www.texas-opinions.com/law-plea-to-the-jurisdiction-relevant-jurisdictional-facts.html

http://webcache.googleusercontent.com/search?q=cache:Xk6KAHbHxC0J:www.justex.net/JustexDocuments/10/Form%20Orders/Presenting_Dispositive_Motions_to_the_Court1J_(2).pdf+&cd=13&hl=en&ct=clnk&gl=us

[cjtx]

 (2) an agreement, express or implied, between the parties fixes an amount due

 

The amount gets fixed or stated when there was no question or dispute about it whatsoever. It looks like you disagreed with the amount and questioned it. So they can't prove this element.

 

You should challenge the chain of title, as shellieh98 suggested. Each of the bills of sale is a business record but in order to be exempt from the general rule for hearsay, it needs to be authenticated by an affidavit from the custodian of the records. Most JDBs produce an affidavit from one of their employees to claim that they are familiar with the records from the previous JDBs and the OC, which is hearsay within hearsay. Hearsay is inadmissible.

 

Although CMRRR is an acceptable form of service it is not very common. I'd love to get a copy of the Certificate of Service they filed with the court reason being it can be challenged if not worded perfectly. My guess is the attorney didn't want to pay the constable because he was not sure of your address and/or was expecting an easy default judgment. No service, no judgment. Worst case scenario you could vacate the judgment for improper service.

 

But most likely he was going for an easy default judgment and it won't be profitable for him to spend time fighting this in court.

[texasrocker]

Do not admit to any item pertaining to the account. The only things you should admit to are your name and address and/or one that says something about that you are not currently in the military.

Caption the document exactly the same as the complaint that you were served with. The caption will include the name of the Texas court, names of the parties and the cause number.

Title the document "Defendant's  Original Answer, Plea to the Jurisdiction and Special Exception". Under the title write a brief paragraph stating "Comes now the Defendant and files his Answer in the above-entitled matter and in support thereof states as follows:

The Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations.

Create numbered paragraphs correlating to each allegation found in the complaint. For each paragraph state "Defendant denies the allegation found in paragraph one of Plaintiff's Complaint" and so on for each allegation.

Finish the document by stating "Defendant prays that the Court deny The Plaintiff's Complaint and for all other relief just and proper in the premises".

Add a certificate of service clause indicating that you have served a copy of the answer on the plaintiff. A certificate of service clause states "I hereby certify that a true and accurate copy of the foregoing Answer was served on _________(plaintiff's attorney) on this the ____ day of _____, 2012 by mailing a copy USPS certified mail to the following address:_____"
Create a signature line and sign the document and print your name, address, and phone number.

 

 

PLEA TO THE JURISDICTION

Grounds for Dismissal for Lack of Standing

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges “The transaction resulted in XXXXXX Assignee of XXXXXX Bank's Account XXXXXXXXXX0000." There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.
A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceraminc Tile Intern., Inc, v. Balusek, 137 S.W3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either.
If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismisses. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.

Legal Standards for a Plea to the Jurisdiction

The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas DOT v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.).
Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at anytime and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000).
The plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

 

(Continued below)
 

[texasrocker]

SPECIAL EXCEPTION TO ACCOUNT STATED

1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated.

The Texas Supreme Court made clear in Truly v. Austin 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin.

Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated.

The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637©(1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant.

2. A Credit Card Account Is Not an Account Stated

A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves ata minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards.

An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ).

Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word “account” as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement.

In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term:

“As used in the statutes of this state, in the act referred to, we believe that the word “account” is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.”

The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6.

The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78

The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said:

“The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693.”

The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgement, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay.

Recent court of appeals decisions allowing a sated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority.
 

[texasrocker]

Texrocker, where you been hiding lately? We've needed your expertise and help here lately. Hopefully, you will be around more often.

Sorry, I have three jobs going on now and very little time to myself.  I drop in from time to time skimming through posts to see if any are Texas related.

 

You can send me a private message and I will get it within a day as I do check my email daily no matter what.  Also if you do a search for my archived posts you may well find a summary of what I would probably tell someone.  

[nailpounder]

@cjtx I was wondering the same thing about the method of service. At first I was thinking it was a substitue form of service until I went back and read the civil procedures and found it's a legit method of service. When I called the district clerk she said that that's the way the jdb requested it be served. I have no doubt that he's calling my bluff and expecting an easy default judgement, but he's gonna find out different. He probably chose the CMRRR because I live way out in the boondocks. I'm definitely challenging the chain of title. Thanks for the good points about hearsay.

 

@texasrocker Thanks for all the good pleadings. I will put them to use. I've been expecting this ever since I received the demand letter back in March, so I've been preparing a response ahead of time. I found a copy of the jdb's boilerplate complaint on the Travis County website back in April and I was already getting to work on it. I just need to polish it up and make sure I have all my ducks in a row. I have until June 24th to file my answer, so I have enough time to get it right.

 

Thanks again to everyone. I will keep you updated on what happens.

[nailpounder]

Well it's been about 8 months since I last posted anything about this case and thought I would give a summary of what has happened since last summer. After being served with the complaint last June, I filed my Plea To The Jurisdiction, Special Exceptions, Special Denials, And Original Answer. The case sat idle for the next six months. Neither the JDB or I requested anything through discovery. About two weeks before Christmas, the JDB filed a Motion For Summary Judgment, probably thinking he'd catch me napping during the holidays. The only SJ evidence he offered was the same lame stuff he provided to me when I DV'ed him prior to the lawsuit. I filed my Response To Plaintiff's Motion For Summary Judgment along with an affidavit and supporting documents. I also filed a Cross-Motion For No-Evidence Summary Judgment at the same time, which in Texas is used when the opposing party lacks evidence to support any element of his claims. The JDB didn't provide any SJ evidence showing any implied or explicit contract or that any transactions had occurred. The Judge set a hearing date for both motions, which in Texas is a hearing on paper unless one of the parties requests a live hearing. Last week the Judge issued his ruling, denying both the JDB's MSJ and my cross-motion. And just as I expected, this week the JDB filed a Motion To Nonsuit Without Prejudice. It's not the best outcome and I feel the judge was wrong in denying my no-evidence cross-motion for SJ. But still it's over for the time being and the snake slithered away with nothing. I don't look for this guy to try again, but he'll likely pass his bad paper on to some other snake waiting in the bushes. I'll be ready. Just thought I'd pass along some good news. Thanks to many on this forum whose posts helped me tremendously.

[RyanEX]

Awesome news, congrats! Looks like you're still within SOL for a few months, so I feel ya, you're not quite out of the woods yet. A win is a win, though - and if they or someone else tries their luck with it before the SOL runs out, they probably won't come at you with anything more in their arsenal than this attempt. Enjoy the day!

[texasrocker]

Thanks for being among the one or two percent that comes back and tells us what transpired.  Most just come here for information and then completely blow us off which is very frustrating and discouraging.

 

Great news on the nonsuit but I must ask why did you not send any discovery?  

[shellieh98]

Congrats, another JDB folding under the pressure of a cic member fighting for their rights!

[nailpounder]

Thanks for being among the one or two percent that comes back and tells us what transpired.  Most just come here for information and then completely blow us off which is very frustrating and discouraging.

 

Great news on the nonsuit but I must ask why did you not send any discovery?  

In my case, I really didn't see any reason to send discovery. I was never sent any discovery requests by the JDB. The JDB is going to show his evidence when he inevitably files MSJ and I was pretty confident that I had enough evidence to defeat his MSJ. So why waste time and money when it's not necessary?