Open Account vs. Account Stated
When credit card companies sue for an amount owed, a consumer may see these two: Open Account or Account Stated and wonder what they are. Although there are several causes of action at a credit card companies disposal, the most prominent among those being breach of contract and damages, Open Account and Account Stated are usually included.
I want to focus on these two causes of action frequently relied on by credit card companies: Open Account and Account Stated because these are the most misunderstood by the consumer.
To properly bring a claim for Account Stated the Plaintiff must allege two elements: (1) that there was an agreement between the parties that a certain balance is correct and due, and (2) there existed an express or implicit promise to pay that balance. When this claim is used, there will often be a paragraph in the complaint alleging that the debtor made no objection to the amount due. Usually, we can object to this claim as consumers usually do object in some fashion.
Yet, while Account Stated is a relatively easy claim for the credit card company to properly allege, the same cannot be said for a claim based on Open Account. In order to sue for Open Account, the party must allege: (1) there was a sales agreement, (2) the amount claimed is either an agreed price or reasonable value, and (3) items were actually furnished. In addition, under Florida case law, to satisfy (3) the claimant must attach an ‘itemized’ copy of the account. See H & H Design Builders, Inc. v. Travelers’ Indem, 639 So. 2d 697, 700 (Fal. 5th DCA 1994). It is this required attachment that is rarely complied with by the credit card company, which is why moving to dismiss a complaint containing a claim for Open Account will often be successful.
In essence, when you receive a credit card lawsuit, don't just roll over on it. Go see an Attorney. The chances are that there is something objectionable in the complaint or in the paperwork. This gives you bargaining room and some time to negotiate.
This blog was written by Branden Henderson, Esq. of the Dellutri Law Group, P.A. Mr. Henderson focuses his practice on Consumer Law Issues where he helps consumers through the Bankruptcy Process, and litigates Credit Reporting Issues, Unfair Debt Collection Issues, Mortgage Foreclosure Issues and other Consumer Law Issues.
