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This is a 2012 decision from another TX appeals court referencing "Truly v. Austin," and holding that credit card collection suits can be brought on an account stated basis.

 

 

http://scholar.google.com/scholar_case?case=15627173925025861912&q=credit+card+compton&hl=en&scisbd=2&as_sdt=4,44&as_ylo=2012

That is an example of why this paragraph is included in the Special Exception claim:

 

"Recent court of appeals decisions allowing a stated 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."

 

Also, Truly v. Austin was not a credit card collection case.

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Read both cases carefully.  The first one was dated August 30, 2013, just weeks ago.   These are two decisions by two different TX appellate courts,  both holding that a credit card lawsuit can be brought under account stated.  There were more cases besides those that I came across, but these both have lengthy analysis of account stated TX law.  I don't think a TX trial court will hold that a credit card case can't be brought under account stated based on the latest appellate decisions.

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Actually, in Texas it's 20 days plus till the following Monday at 10:00am. So, even though 20 days is Thursday the 26th, I have until the following Monday (30th) at 10:00am. I don't see where it would help me to get it in before the Dismissal Hearing at 9:00am on Friday the 27th. In Texas, if the defendant has been served and no answer has been filed, then it's within the parameters to Dismissal for Want of Prosecution. The plan is to go to the clerk's office on the afternoon of the 27th with my answer....just in case the judge doesn't dismiss the case.

 

I know you and I (TexasToast) have already discuss this, but my summons stated I had only ten days plus till the following Monday at 10:00 a.m.  I'll attach the file..

 

Just want to get others point of view and see if I can take action on it...

SKMBT_75113091115440.pdf

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The day of reckoning is approaching and I have a queston. If the case receives a Dismissal for Want of Prosecution should I still submit my answer afterwards incase the lawyer tries to get the case reinstated post dismissal? Should I have the answer on file with the court or will doing this trigger the lawyer to try to get the case reinstated?

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You would not submit an answer after the attorney dismissed.

If its dismissed the case is done till they re-file unless there is good cause for the case to be maintained on the docket.

Tex. R. Civ. P. 165a;Dismissal for Want of Prosecution

RULE 165. ABANDONMENT. RULE 165a

1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. If the court determines to maintain the case on the docket, it shall render a pretrial order assigning a trial date for the case and setting deadlines for the joining of new parties, all discovery, filing of all pleadings, the making of a response or supplemental responses to discovery and other pretrial matters. The case may be continued thereafter only for valid and compelling reasons specifically determined by court order. Notice of the signing of the order of dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule 306a except as provided in that rule.

2. Non-Compliance with Time Standards. Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket.

3. Reinstatement.A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.

The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.

In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.

4. Cumulative Remedies.This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any other procedures available to the parties in such cases. The same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court's inherent power, whether or not a motion to dismiss has been filed.

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