Account Stated

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Collecting sums due under a credit card agreement.

A claim of recovery under the theory of recovery known as account stated, where, by contract,
the debtor has a reasonable period of time in which to question all or part of the debt,
after which the account stated is conclusively presumed to be the amount due.

SL: So produce the Promissory Note signed by creditor
and borrower already, racketeers of debt collection.

Will you, bastards?

Don't forget the receipts of purchases and complete accounting by the CPA employed
by the creditor -not one of your clowns pretending to be an Officer of his toilet cubicle
in Asset, NCO, LVNV, etc.
 

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http://www.legalspecs.com/g_account-stated.html

account stated

Definition 1


The settlement of an account
between the parties, by which a
balance is struck in favor of one of them,
is called an account stated.


2. An acknowledgnaent of a single item
of debt due from the defendant to
the plaintiff is sufficient to support a
count on an account stated. 13 East,
249, 5 M.& S. 65.


3. It is
proposed to consider, 1st, by whom an account may, be stated, 2d,
the
manner of stating the account, 3d, the declaration upon such, an
account,
4th, the evidence.


4. 1. An account may be stated by a man
and his wife of the one part, and
a third person, and unless there is an
express promise to pay by the hushand,
Foster v. Allanson, 2 T. R. 483, the
action must be brought against hushand
and wife. Drue v. Thorne, Aleyn, 72.
A plaintiff cannot recover against a
defendant upon an account stated by
him, partly as administrator and partly
in his own private capacity.
Herrenden v. Palmer, Hob. 88. Persons wanting a
legal capacity to make a
contract cannot, in general, state an account, as
infants, Truman v. Hurst,
1 T. R. 40, and persons non compos mentis.


5. A plaintiff may
recover on an account stated with the defendant,
including debts due from
the defendant alone, and from the defendant and a
deceased partner jointly.
Riebards v. Heather, 1 B.& A. 29, and see Peake"s
Ev. 257. A settlement
between partners, and striking a balance, will enable
a plaintiff to
maintain an action on such stated account for the balance
due him, Ozeas v.
Johnson, 4 Dall. 434, S. C. 1 Binn. 191, S. P. Andrews v.
Allen, 9 S. & R.
241, and see Lamelere v Caze, 1 W. C.C.R. 435.


6. - 2. It is
sufficient, although the account be stated of that which is
due to the
plaintiff only without making any deduction for any counter-claim
for the
defendant, Styart v. Rowland, 1 Show. 215. It is not essential that
there
should be cross demands between the parties or that the
defendant"s
acknowledgment that a certain sum was due from him to the
plaintiff, should
relate to more than a single debt, or transaction. 6
Maule & Selw. 65,
Knowles et al. 13 East, 249. The acknowledgment by the
defendant that a
certain sum is due, creates an implied promise to pay the
amount. Milward v.
Ingraham, 2 Mod. 44, Foster v. Allanson, 2 T. R. 480.



7. - 3. A count on an account stated is almost invariably inserted
in
declarations in assumpsit for the recovery of a pecuniary demand. See
form,
1 Chit. PI. 336. It is advisable, generally, to insert such a count,
Milward,
v. Ingraham, 2 Mod. 44, Trueman v. Hurst, 1 T. R. 42, unless the
action be
against persons who are incapable in law to state an account.

It is not
necessary to set forth the subject-matter of the original debt,
Milward v.
Ingraham, 2 Mod. 44, nor is the sum alleged to be due material.
Rolls v.
Barnes, 1 Bla. Rep. 65, S. C. 1 Burr. 9.

8. - 4. The count
upon an account stated, is supported by evidence of an
acknowledgment on
the part of the defendant of money due to the plaintiff,upon an account
between them. But the sum must have been stated between the
parties, it is
not sufficient that the balance may be deduced from
partnership books.
Andrews v. Allen, 9 S.&. R. 241. It is unnecessary to
prove the items of
which the account consists, it is sufficient to prove some
existing
antecedent debt or demand between the parties respecting which an
account
was stated, 5 Moore, 105, 4 B.& C. 235, 242, 6 D.& R. 306, and that
a
balance was struck and agreed upon, Bartlet v. Emery, 1 T. R. 42, n,
for
the stating of the account is the consideration of the promise. Bull.
N. P.
129. An account stated does not alter the original debt, Aleyn, 72,
and it
seemsnot to be conclusive against the party admitting the balance
against
him. 1 T. R. 42. He would probably be allowed to show a gross error
or
mistake iu the account, if he could adduce clear evidence to that
effect. See
1 Esp. R. 159. And see generally tit. Partner"s, Chit. Contr.
197, Stark. Ev.
123, 1 Chit. Pl. 343.


9. In courts of equity when a
bill for an account has been filed, it is a
good defence that the parties
have already in writing stated and adjusted the
items of the account, and
struck a balance, for then an action lies it
law, and there is no ground
for the interference of a court of equity. 1 Atk.
1, 2 Freem. 62, 4 Cranch,
306, 11 Wheat. 237, 9 Ves. 265, 2 Bro. Ch.
R. 310, 3 Bro. Ch. R. 266, 1
Cox, 435.


10. But if there has been any mistake, ommision, fraud,
or undue advantage,
by which the account stated is in fact vitiated, and
the balance incorrectly
fixed, a court of equity will open it, and allow it
to be re-examined, and
where there has been gross fraud it will direct the
whole account to be
opened, and examined de novo. Fonbl. Eq. b. 1, c. 1 3,
note (f), 1
John. Ch. R. 550.


11. Sometimes the court will allow
the account to stand, with liberty to
the plaintiff to surcharge and
falsify it, the effect of this is, to leave
the account in full force and
vigor, as a stated account, except so far as
it can be impugned by the
opposing party. 2 Ves. 565, 11 Wheat. 237. See
Falsification,
Surcharge.

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ACCOUNT STATED: AN ACCOUNTING OF THE STATE OF THE LAW
By: Daniel Morman, Esq. of Miami, Florida

Introduction

AAccount stated@ is often asserted as a legal theory in collection actions initiated by creditors
against account debtors. This frequently utilized, but often misunderstood, action has been part of the
common law for centuries. The Florida Rules of Civil Procedure contain an official form which sets forth the
basic framework for alleging a claim based upon an account stated theory.1 The framework, while on the
surface, apparently simple enough, fails to answer several questions related to claims asserted based upon
an account stated theory. Is account stated the basis for a cause of action? Is account stated a theory of
liability or a theory of damages? Do allegations based upon account stated theories create tactical
evidentiary advantages for plaintiffs? What considerations should be taken into account when pursuing or
defending an action which contains an account stated claim? This article will provide a detailed definition of
what constitutes an account stated along with its essential elements, provide examples of what does not
qualify as an account stated, and provide answers to the above stated questions. It will conclude with a
discussion of various types of cases which involve account stated issues.


Account Stated Defined - The Essential Elements
An Aaccount stated@ is defined as a claim resulting from Aan agreement between persons who
have had previous transactions, fixing the amount due in respect to such transactions and promising
payment.@2 The previous transactions between the parties must have concerned the transaction with
respect to which the account at issue was stated.3 There must be an agreement between parties that a
certain balance is correct and due and an express or implicit promise to pay the balance.4 The action for an
account stated is for a sum certain.5 Historically, the factor which gives rise to a claim under an account
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stated theory is the agreement of the parties to pay the amount due upon the accounting, not upon an
underlying written instrument.

The consideration for the promise which gives rise to an account stated count
Ais the statement of the account ascertaining and fixing the sums due which constitute the debt, and not the
existence of the debt itself.@6



The basic premise of an account stated action is that the statement fixing the
various sums that constitute the debt is correct, and not the existence of the debt itself.7
Notwithstanding the proposition that the agreement which gives rise to an account stated claim is
that in which the parties agree that payment is due upon the accounting and not the underlying instrument,
the concept that an account stated claim requires an agreement between the parties is nevertheless twofold.

First, the must be a mutual agreement covering the underlying transaction - the parties must have some sort
of business relationship.8 Second, there must be an agreement, albeit often implied, that the statements
reflected on invoices submitted are correct and due.9


As a practical matter, an account stated will come into being when a creditor sends periodic bills to
a debtor for a certain amount, and the debtor fails to object within a reasonable time,10 or if there is an
express acquiescence in the account rendered.11 The periodic billings should be sent as part of a regular
course of dealing.12 Stated simply, an account stated is generally established Awhen a debtor fails to object
to a bill from his creditor within a reasonable time.@13 The basic premise of an account stated action is that
the action itself presupposes some indebtedness, and that the statement which fixes various sums constituting
the debt are correct.14 It is a legal theory which can be used as the foundation for the assertion and
subsequent admission of the existence and amount of a preexisting obligation.15
The official form set forth in the Florida Rules of Civil Procedure for pleading an account stated
claim sets forth four allegations, to wit: (1) The action is for damages in a certain jurisdictional amount; (2)
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Before institution of the action, the parties had business transactions and on a date certain, agreed upon a
resulting balance; (3) Plaintiff rendered a statement of the account balance to the defendant and the
defendant failed to object; (4) Defendant owes plaintiff the amount set forth in the statement plus interest.

A
copy of the account showing items, time of accrual of each and amount of each must be attached.16
Cases Which Do Not Give Rise to an Account Stated Claim - Open Account Distinguished
Previously, it was noted that in order for an account stated to arise, there must first be an agreement
between the parties. If there is no agreement, there can be no liability on an account stated.17 Similarly, in
the absence of an express or implicit promise to pay the balance on a statement of account which has been
rendered, no recovery upon an account stated theory is permitted.18 Accordingly, there is no liability on an
account stated theory if no liability existed when the statement of account was presented.19 The mere
presentation of a claim and its retention without objection does not of itself create a liability.20 Conversely, a
statement of account rendered without objection cannot establish the nonexistence of a debt.21
If the record fails to disclose that any account stated was ever rendered, there can be no recovery
on an account stated theory.22 An account stated must be based on prior dealings resulting in a subsisting
debt.23

It may not rest upon a liquidated demand which the defendant is already bound to pay.24 When a
defendant complains to a plaintiff that the requested services were not being performed, the plaintiff may not
recover upon a theory of account stated.25 If the evidence shows that one item in the account was without
foundation, no recovery can be had for such unfounded claim.26 Similarly, the presentation of a claim for
services without objection is insufficient to sustain an account stated claim if the defendant had no dealings
with the plaintiff, 27 or if the claimant did not regularly send invoices to the alleged debtor.28 Along these
lines, the presentation by mail of a claim for materials without objection is insufficient to sustain an account
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stated claim when the defendant never had any dealings with the sender.29

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An account stated is to be distinguished from an open account.

An open account claim involves an
unsettled debt arising from items of work and labor, with the expectation of further transactions subject to
future settlements and adjustment.30

 An open account claim can also be based upon money advanced31, or
goods sold and delivered.32

If an open account claim is made for goods sold and delivered, there must be
proof of a sales contract between the creditor and debtor,33 and proof of delivery and either an agreement
upon the sales price or that the amounts claimed represent a reasonable value for the goods delivered.34

The claimant should attach an itemized copy of the account to the complaint.35

The statute of limitations on
an open account begins to accrue when payment is due for items charged to the account.36 The pleading of
an open account claim should be substantially in the same form as set forth in the Florida Rules of Civil
Procedure.37


If a debtor only did business with a creditor in its corporate capacity, the creditor will be unable to
recover individually from the corporate principals under either an account stated or open account theory.38

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Is Account Stated a Cause of Action, Theory of Liability, or Theory of Damages?

Previously, it was noted that an essential element for an account stated claim is that the parties had
an agreement.

However, despite the fact that an agreement must exist in order for an account stated action
to be sustained, since the consideration for the account stated claim is the actual statement of account, and
not the original cause of the indebtedness, there is no need to state such original cause,39 despite the fact that
it is nevertheless required to plead the existence of a mutual agreement.40 Accordingly, it is not necessary
to plead a cause of action based upon breach of contract in order to prevail under a separate account stated
theory. However, this begs the question - if an agreement between the parties is one of the conditions for
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prevailing on an account stated claim, why isn=t the underlying cause of action one for breach of contract?

In order to properly discuss issues related to whether an account stated claim is in itself a separate
cause of action, or whether the underlying cause of action is one for breach of contract, it is helpful to define
the term Acause of action.@ Simply stated, a Acause of action@ is the right which a party has to institute a
judicial proceeding.41

 It is distinguished from a mere Aright of action@ in that a Aright of action@ is remedial
while a Acause of action@ is substantive. The term Aright of action@ refers to the plaintiff=s right to bring a
suit, and considers issues such as capacity, standing and the like.42 A Acause of action@ has also been
defined as being Asome particular legal right of plaintiff against defendant together with some definite
violation thereof which occasions loss or damage.@43


Under the first definition of Acause of action,@ the right to institute a judicial proceeding, an account
stated claim can clearly be classified as a cause of action. The legal theory of account stated is one which
has evolved and been authorized under the common law. If the plaintiff=s claim contains the requisite
elements, the existing body of case law authorizes such plaintiff to institute an action against a defendant
under the legal theory of account stated, and does not require the plaintiff to assert any other actions against
the defendant in its complaint. Under the second stated definition of the term Acause of action@, while the
analysis contains a little more detail, it is submitted that an account stated claim will qualify as a Acause of
action.@

There must be a particular legal right of the plaintiff against the defendant along with a violation
which causes loss or damage. Under an account stated claim, the plaintiff has a legal right to be paid on his
account. The defendant, after having received a statement of account fails to object or otherwise
acquiesces to the amount claimed, and the plaintiff suffers loss or damage as a result of the defendant=s
failure to pay.


Accordingly, based upon these two definitions of Acause of action,@ it is submitted that an
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account stated claim does indeed qualify as a cause of action.
Several cases also refer to account stated as being a cause of action. In Dionne v. Columbus
Mills, Inc.44, the Court dismissed a count of a complaint for the reason that it failed to state a cause of
action for an account stated.45


Compare Carole Korn Interiors, Inc. v. Goudie46 holding that the
plaintiff=s complaint alleged sufficient facts to state a cause of action for account stated.47
This, however, leads to further inquiry - is a the account stated claim which gives rise to a cause of
action a theory of liability, a theory of damages, or both? It is submitted that in most cases, the better
answer is that an account stated claim is more properly classified as a theory of damages as opposed to one
of liability. As noted previously in Whittington v. Stanton and Nicolaysen v. Flato, cited supra, the
account stated theory is premised upon the correctness of the statement fixing the various sums which
constitute the debt.

The actual debt itself must be in existence for an account stated claim to succeed - if
not, the cause of action will fail. As noted in Oceanic International Corporation v. Lantana Boatyard,
cited supra, the basic premise of an account stated action is that the action itself presupposes some
indebtedness. If in fact such indebtedness arose from the breach of a promise, and the indebtedness itself is
presupposed, it therefore follows that the breach of promise must also be presupposed. Accordingly,
successful account stated actions are premised upon the existence of liability on the part of the debtor.

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Therefore, the account stated action cannot be properly classified as a theory of liability, or can it?
The argument that account stated is an evidentiary theory for proof of damages can be supported.
The definitions of account stated as set forth in Whittington v. Stanton, supra and Architectonics, Inc. v.
Salem-American Ventures, Inc., cited supra, may be inapposite in certain respects. Whittington
presupposes that the consideration for the account stated claim is the accounting itself. Architectonics, on
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the other hand, stands for the proposition that rendition of the invoice merely gives rise to a possible
evidentiary admission of the existence and amount of the obligation.

 Both, however, are consistent in that
the end result of a successful account stated claim under these competing analyses is a fully liquidated claim
of damages - the amount set forth on the invoice or statement. Therefore, the better argument is that
account stated should be classified as a theory of damages.

As to the unanswered question of whether
account stated can be classified as a theory of liability, we again look to Architectonics. To the extent that
account stated is used as a theory which gives rise to the existence of an obligation by the debtor=s failure
to raise an objection, it can be stated that under this limited situation, account stated can also be classified as
a theory of liability. However, in all situations, it by definition, account stated is a theory of damages as well.


Evidentiary and Pleading Considerations

In addition to being a cause of action, a theory of damages, and in limited circumstances, a theory of
liability, account stated, if properly used, is an evidentiary tool. Rendition of a statement of account to a
debtor who fails to object to the accuracy of the items and statement contained therein can be used as an
admission to the existence and amount of a preexisting obligation.48 Once the particular elements of an
account stated are shown, the account stated cause is deemed prima facie correct.49 That being said, an
account stated, once proven, is not conclusive, but merely presumptive evidence of the correctness of its
items.50
While an account rendered not objected to within a reasonable period of time may be regarded as
being prima facie correct, nevertheless, a cause of action under an account stated claim will not succeed if
the underlying elements are not otherwise properly pled in the complaint.51 Similarly, even if the elements of
an account stated are properly pled, the cause will fail if they are not proven. Thus, if it is shown that there
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were no dealings between the parties52, or there otherwise is no mutual agreement between the parties53,
and thus, no liability at the time the account was presented, the account stated claim will fail.54

Similarly, if
the dealings were between the plaintiff and a party related to the defendant, but not the actual defendant
itself, the account stated claim will fail.55 The plaintiff must introduce an account into evidence.56 When the
record fails to disclose that any account was ever rendered57, or that a balance was agreed58, or that there
was an express or implied promise to pay the balance59, the account stated claim will not succeed.
Evidence that the plaintiff had a custom of sending bills to the defendant is insufficient to prove that the
account statements at issue were ever rendered to the defendant.60
Proof of the elements supporting an account stated claim may be in writing or by parol.61 Evidence
that a debtor who received a bill for services rendered stated that he would pay in full once he received
anticipated income without rebuttal from the debtor supports an account stated claim.62 Along these lines,
proof that a defendant did not quarrel with the amount set forth in an invoice, but instead argued an
entitlement to a set-off constitutes an implied admission as to the correctness of the amounts set forth in the
invoices.63

Testimony that goods were shipped according to invoices and that the invoices accurately
reflected the amount of goods combined with testimony that the account debtor never disputed the accuracy
of the invoices was ruled to be a proper foundation for admitting the invoices into evidence.64 Proof of the
original statement of the account at issue is admissible.65 As well, evidence that the defendant initialed the
account statement at issue can be used to prove that there was an agreement as to the correctness of the
amount so stated.66

If the issue is whether the debtor acquiesced to the correctness of the account, it is not
necessary to produce the books of original entry.67

Evidence that the debtor did not object to the account
rendered until five years later when suit was filed was sufficient to show a failure to object within a
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reasonable period of time.68 As to the ultimate question of what constitutes a reasonable time in order to
object to an account statement, it is unclear whether this question remains one of fact or law, or both.


However, at least one authority argues that, in the first instance, the question is one of law.69 Submission of
an ex-parte affidavit that an account stated is just and true as stated, and that no part has been paid is not
evidence per se of the correctness of the account. Additional evidence is necessary.70 Testimony of other
dealings between the parties which are not reflected in the account at issue is usually irrelevant as to the
account stated cause.71


After the existence of an account stated is proved, the account stated is deemed presumptively
correct.72 It may only be attacked by proof of fraud, duress, mistake or other grounds cognizable in equity
for avoidance of an instrument.73 Once the necessary elements of an account stated are proven, the burden
then shifts to the defendant to show that the account is incorrect due to fraud, duress or mistake.74 The
burden of proving fraud, duress or mistake is not met by a mere preponderance of the evidence. Rather,
there must be a Astrong showing.@75 A defense of estoppel by fraud failed when the court ruled that the
defendant failed to show a detrimental change in position.76 If a defendant fails to raise any of these
defenses in an answer, this will not preclude raising the defenses in opposition to a motion for summary
judgment.77

However, if the debtor fails to even allege fraud, duress or mistake, once an account stated is
proven, there is no need to even inquire into the correctness of the claim.78
While the Florida Supreme Court, in Whittington v. Stanton, supra, notes that in account stated
actions, Athe original cause of the indebtedness need not be stated,@79 it is nevertheless advisable to plead
other causes of action such as breach of contract and open account in the alternative to an account stated
count. Factual disputes may arise during the course of litigation which may preclude recovery under an
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account stated theory. For example, in Merrill-Stevens Dry Dock Company v. Corniche Express, cited
supra, the account debtor testified that he disputed invoices at issue within a reasonable period of time.

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The
plaintiff was precluded from recovering on other theories after the trier of fact found that there was no
evidence of an agreement as to the amount owed.80 Had the plaintiff pled alternative theories, it might have
prevailed on a different cause of action. In Krest-View Nursing Home, Inc. v. Sokolow, cited supra, the
jury rendered a verdict in an amount less than that claimed on the account stated claim. However, since the
plaintiff pled a claim in the alternative under a quantum meriut theory, a judgment was entered in his favor.81


In Myrick v. St. Catherine LaBoure Manor, Inc.,cited supra, the court construed the plaintiff=s defective
account stated claim as being a claim under an open account theory.82 Notwithstanding the advisability of
pleading alternative theories in the complaint, merely pleading account stated and open account in the
alternative is insufficient in and of itself to vest the court with in rem or quasi in rem jurisdiction.83
When defending an account stated claim, it is advisable to consider the elements of an account
stated action and the defenses to an account stated action when considering whether to file a responsive
pleading, including affirmative defenses, or to file a motion to dismiss. It is recommended that the attorney
review each element required to establish an account stated claim. If, for example, the complaint which
asserts an account stated cause of action fails to assert an agreement between the parties, this gives rise to a
motion to dismiss before the filing of a responsive pleading.84 If the account stated claim is properly pled, a
defendant should consider pleading the defenses of fraud, duress, or mistake as affirmative defenses.85


Particular Types of Cases

A review of the body of case law addressing account stated issues indicates that disputes arise more
often than not in certain types of situations. This section will discuss cases that arise in the context of
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disputes between attorneys and clients, issues related to organizations and their individual members, and
disputes between health care providers and their debtors.
Not surprisingly, several cases have been reported where attorneys have raised account stated
claims in collection actions against delinquent clients. In Solar Research Corporation v. Parker, cited
supra, the Florida Supreme Court affirmed a District Court ruling that the trial court should have granted a
motion for judgment notwithstanding the verdict in favor of a law firm on an account stated theory.

The
defendant client did not object to an invoice, and stated that it would be paid when he had enough money.
No evidence was proffered to contradict the amount owed to the attorney.86 In Robertson v. Goethel87,
summary judgment was entered in favor of the attorney-plaintiff. The undisputed evidence of record
indicated that the attorney rendered and the client accepted legal services, services which were rendered
over a period of time. The client paid, without protest, various bills which were sent. The unpaid bills at
issue were reasonable, (and while not stated in the opinion, it is presumed that no objection was raised).88


In Federal Deposit Insurance Corporation v. Brodie, cited supra, an attorney raised an account stated
claim for unpaid fees. The district court overturned a verdict in favor of the attorney on this cause. In doing
so, it noted that there was no proof that the parties agreed upon the resulting balance. There was no
practice of periodic billing. However, the attorney was permitted to recover on a quantum meriut theory,
and it was ruled that the trial judge improperly withheld this issue from the jury.89 In McKissick v. Bilger,
cited supra, a law firm represented a joint venturer. The law firm then presented bills to the joint venturer=s
individual members without objection. It was held that this was insufficient to create a presumption of an
account stated since the members had no dealings with the law firm in their individual capacities.90 In
O=Melveny & Myers, LLP v. Adams,91 a law firm could not sustain an account stated action against a
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corporate officer and his father.

The firm was retained to represent the corporation. However, there was
no showing that the firm actually sent separate statements to the individuals, nor was any effort made to
isolate services which were rendered to the benefit of individual defendants.92
Other cases address the interplay of individuals and their organizations in the context of account
stated claims. In Westerman v. Polygard, Inc.,cited supra, the court reversed a summary judgment
granted in favor of a plaintiff. The plaintiff asserted in its complaint that the individual defendants were liable
on an account stated claim. The affidavits and depositions indicated that the plaintiff only did business with
the defendants= corporation, and not with the defendants in their individual capacity.93 In C&H
Contractors, Inc. v. McKee, cited supra, the court considered the liability of a corporation due to acts of
its principal.

An individual purchased a bulldozer, and subsequently transferred it to his newly formed
corporation in exchange for stock. The seller of the bulldozer sent bills to the corporation which failed to
object in a timely manner. Nevertheless, the court found that the corporation was not liable for the reason
that the corporation had no dealings with the plaintiff.94

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Litigation addressing account stated claims frequently arises in the health care field. In Krest-View
Nursing Home, Inc. v. Sokolow, cited supra, an accountant gave the nursing home client a written
statement that he was paid up to date. However, evidence was adduced that this statement was given for
no consideration, and solely for the purpose of enabling certain shareholders to gain control of the defendant
corporations. If they in fact did obtain control, the statement was to be given no force and effect. On
appeal, it was held that the judge properly submitted the issue to the jury, which rendered a verdict in favor
of the creditor.95 In Myrick v. St. Catherine LaBoure Manor, Inc., supra, a nursing home sued the
spouse of one of its patients and asserted an account stated cause. The complaint failed to allege that the
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nursing home and the wife had business transactions between them and agreed to a resulting balance.


Further, the invoices failed to completely list the items being charged. As to the defective complaint, the
court treated the claim as alleging an open account.96 As to incomplete invoices, the court held that there
was a question of fact whether or not some of the charges were even covered in the parties= underlying
agreement, and thus precluded a summary judgment award.97 In Home Health Services of Sarasota, Inc.
v. McQuay-Garrett, Sullivan & Company,98 a creditor who established the essential elements of an
account stated action effectively shifted the burden to the debtor to prove fraud, mistake or error.
However, the court held that the debtor was entitled to be heard on the issue of whether or not payments
were mistakenly not credited to its account.99


Conclusion

An account stated requires: (1) An agreement between the parties; (2) who had business
transactions; (3) that the creditor sent an invoice in a sum certain amount to the debtor as part of periodic
billing done in the regular course of dealing; and (4) the debtor either failed to object within a reasonable
time, or expressly or impliedly acquiesced to the bill. An open account is distinguished from an account
stated in that an open account involves an unsettled debt. Account stated is a cause of action. It is
sometimes a theory of liability in that it can be used to obtain an admission of the existence of a debt. It is
always a theory of damages in that it is used to obtain an admission as to the amount of a debt. The
admissions which can result from an account stated claim render account stated an evidentiary tool for the
plaintiff. If the plaintiff proves the elements of an account stated claim, the burden of proving the defenses of
fraud, duress or mistake shift to the debtor, who must prove the defenses by a Astrong showing.@ Due to
factual issues which may arise, it is advisable to plead alternative counts under breach of contract, open
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account, and if applicable, quantum meriut theories. A defendant faced with an account stated claim may
move to dismiss the account stated cause if the essential elements are not plead. Otherwise, the defendant
should consider pleading fraud, duress and mistake as affirmative defenses.


Mr. Morman is with Patrick C. Barthet, P.A. in Miami, Florida. He specializes in the area of creditors’ rights, including
bankruptcy, leasing litigation, and tax issues.

[Sharing Lights]

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1. Form 1.933, Florida Rules of Civil Procedure.
2. South Motor Company of Dade County v. Accountable Construction Co., 707 So.2d 909, 912
(Fla. 3d DCA 1998) (citations omitted).
3. Daytona Bridge Co. v. Bond, 36 So. 445, 447, 47 Fla. 136, 143 (Fla. 1904) (citations omitted).
4. Merrill-Stevens Dry Dock Company v. Corniche Express, 400 So.2d 1286 (Fla. 3d DCA 1981)
(citations omitted); See also, Georges v. Friedman & Co., P.A., 499 So.2d 59 (Fla. 4th DCA 1986).
5. Id.
6. See Whittington v. Stanton, 63 Fla. 311,315, 58 So. 489, 491 (Fla. 1912).
7. Id. See also, Nicolaysen v. Flato, 204 So.2d 547, 549 (Fla. 4th DCA 1967).
8. Daytona Bridge Co. v. Bond, 47 Fla. at 143, 36 So. at 447; McKissick v. Bilger, 480 So.2d 211,
213 (Fla. 1st DCA 1985); Braun v. Noel 188 So.564 (Fla. 3d DCA 1966) (citations omitted).
9. Merrill-Stevens Dry Dock Company v. Corniche Express, 400 So.2d at 1286; Georges v.
Friedman & Co., P.A., 499 So.2d at 59; Although see Myrick v. St. Catherine Laboure Manor,
Inc., 529 So.2d 369, 371 (Fla. 1st DCA 1988) where the Court states that the failure to allege an
agreement to the resulting balance could be construed to state a claim for open account.
10. Dudas v. Dade County, 385 So.2d 1144 (Fla. 3d DCA 1980) (citations omitted).
11. Rauzin v. Kupper, 139 So.2d 432 (Fla. 3d DCA 1962).
12. Levy v. Steven L. Geller, Inc., 444 So.2d 568 (Fla. 3d DCA 1984).
13. Robert C. Malt & Company v. Kelly Tractor Company, 518 So.2d 991, 992 (Fla. 4th DCA
1988) (citations omitted).
14. Oceanic International Corporation v. Lantana Boatyard, 402 So.2d 507, 513 (Fla. 4th DCA
1981).
15. Architectonics, Inc. v. Salem-American Ventures, Inc., 350 So.2d 581,585 (Fla. 2d DCA
1977).
16. Form 1.933, Florida Rules of Civil Procedure. See In re Florida Rules of Civil Procedure, 211
So.2d 174, 185 (1968). See also, Fla. R. Civ. Pro. 1.130(a).
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17. Braun v. Noel, 188 So.2d at 564.
18. Federal Deposit Insurance Corporation v. Brodie, 602 So.2d 1358, 1361 (Fla. 3d DCA
1992).
19. Everett v. Webb Furniture, 98 Fla. 780, 782, 124 So. 278, 279 (Fla. 1929) (citations omitted).
20. Braun v. Noel, 188 So.2d at 564 and citations thereunder; See also, Recreation Corporation of
America v. Jack Drury and Associates, Inc., 235 So.2d 49 (Fla. 4th DCA 1970).
21. Oceanic International Corporation v. Lantan Boatyard, 402 So.2d at 513.
22. Rauzin v. Kupper 139 So.2d at 432.
23. Dutch Inns of America, Inc. v. Jenkins, A.I.A., 301 So.2d 119 (Fla. 3d DCA 1974).
24. W.C. Nicolaysen v. Flato, 204 So.2d at 549.
25. Wackenhut Corporation v. F.A. Conner, 420 So.2d 383 (Fla. 3d DCA 1982), citing Merrill-
Stevens Dry Dock Company v. Corniche Express, supra.
26. Withers v. Sandlin, 44 Fla. 253, 263-264, 32 So. 829, 832 (Fla. 1902).
27. McKissick v. Bilger, 480 So.2d at 211.
28. Page Avjet Corporation v. Cosgrove Aircraft Service, Inc., 546 So.2d 16, 18 (Fla. 3d DCA
1989).
29. Daytona Bridge Co. v. Bond, 47 Fla. at 143, 36 So. at 447.
30. South Motor Company of Dade County v. Accountable Construction Co., 707 So.2d at 912.
31. Central Insurance Underwriters, Inc. v. National Insurance Finance Company, 599 So.2d
1371, 1373 (Fla. 3d DCA 1992).
32. Cara A. School Uniforms, Inc. v. Victoria Fabrics Corp., 347 So.2d 717 (Fla. 3d DCA 1977).
33. Evans v. Delro Industries, Inc., 5009 So.2d 1262, 1263 (Fla. 1st DCA 1987).
34. Alderman Interior Systems, inc. v. First National-Heller Factors, Inc., 376 So.2d 22, 24 (Fla.
2d DCA 1979).
35. H&H Design Builders, Inc. v. Travelers= Indemnity Company, 639 So.2d 697, 700 (Fla. 5th
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DCA 1994).
36. Hawkins v. Barnes, 661 So.2d 1271, 1272 (Fla. 5th DCA 1995).
37. Form 1.932, Florida Rules of Civil Procedure.
38. Westerman v. Polygard, Inc., 395 So.2d 641 (Fla. 2d DCA 1981).
39. Whittington v. Stanton, 63 Fla. at 315, 58 So. at 491.
40. Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. 2d DCA 1975), rehearing denied; See
also, Architectonics, Inc. v. Salem-American Ventures, Inc, supra, 350 So.2d at 585 holding that
when complaint shows without contradiction that the underlying obligation upon which the account
stated claim is based does not exist, the account stated claim must be dismissed.
41. Shearn v. Orlando Funeral Home, 88 So.2d 591, 593 (Fla. 1956).
42. See Griffin v. Workman, 73 So.2d 844, 847 (Fla. 1956).
43. Luckie v. McCall Manufacturing Co., 153 So.2d 311, 314 (Fla.1st DCA), cert. denied, 157
So.2d 817 (Fla. 1963); Soowal v. Marden, 452 So.2d 625, 626 (Fla. 3d DCA 1984).
44. 311 So.2d 681, rehearing denied (Fla. 2d DCA 1975).
45. Id. at 684.
46. 573 So.2d 923 (Fla. 3d DCA 1990), rehearing denied (1991).
47. Id. at 924 (citations omitted).
48. Architectonics, Inc. v. Salem-American Ventures, Inc., 350 So.2d at 585.
49. Poppel v. Culpepper, 50 Fla. 515, 520, 47 So. 351, 353 (Fla. 1908).
50. Martyn v. Amold, 36 Fla. 446, 454, 19 So. 791, 793-794 (Fla. 1895).
51. Myrick v. St. Catherine Laboure Manor, Inc., 529 So.2d at 371.
52. Daytona Bridge Co. v. Bond 47 Fla. at 143, 36 So. 447; C&H Contractors, inc. v. McKee,
177 So.2d 851, 854 (Fla. 2d DCA 1965).
53. Braun v. Noel, 188 So.2d at 564.
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54. Everett v. Webb Furniture, 98 Fla. at 782, 124 So. at 279.
55. Basic Food Industries, Inc. v. Wackenhut Corporation, 323 So.2d 1 (Fla. 3d DCA 1975).
56. Florida Railway Co. v. Fox et al., 67 Fla. 367, 369 65 So. 224, 225 (Fla. 1914).
57. See, e.g., United Hardware-Furniture Co. v. Blue, 59 Fla. 419, 425, 52 So. 364, 366 (Fla.
1910).
58. Merrill-Stevens Dry Dock Company v. Corniche Express, 400 So.2d at 568; Rauzin v.
Kupper, 139 So.2d at 432.
59. Federal Deposit Insurance Corporation v. Brodie, 602 So.2d at 1361.
60. United Hardware-Furniture Co. v. Blue, 59 Fla. at 425-426, 52 So. at 366.
61. Whittington v. Stanton, 63 Fla. at 315, 58 So. at 491.
62. Solar Research v. Parker, 211 So.2d 138, 140-141. (Fla. 1969).
63. Breezy Bay, Inc. Industria Maquiladora Mexicana, S., 361 So.2d 440, 441 (Fla. 3d DCA
1978).
64. Breezy Bay, Inc. v. Industria Maquiladora Mexicana, S.A., 361 So.2d at 441.
65. Jacksonville, M&P Ry. and Nav. Co. v. Warriner, 35 Fla. 197, 203, 16 So. 898, 899 (Fla.
1895).
66. Gendzier v. Bielecki, 97 So.2d 604, 607 (Fla. 1957).
67. Id.
68. Dudas v. Dade County, 385 So.2d at 1144.
69. Martyn v. Amold, 36 Fla. at 455-456, 19 So. at 794.
70. Withers v. Sandlin, 44 Fla. at 257, 32 So. at 830.
71. Poppel v. Culpepper, 50 Fla. at 520, 47 So. at 353.
72. Robert C. Malt & Company v. Kelly Tractor Company, 518 So.2d at 992.
73. Merrill-Stevens Dry Dock Company v. Corniche Express, 400 So.2d at 1287.
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74. Derius v. Allstate Indemnity Company, 723 So.2d 271, 273-274 (Fla. 4th DCA 1998).
75. Brite v. Orange Belt Securities, 133 Fla. 266, 271, 182 So. 892, 895 (Fla. 1938).
76. Krest-View Nursing home, Inc. Sokolow, 177 So.2d 775, 777 (Fla. 3d DCA 1965).
77. Robert C. Malt & Company v. Kelly Tractor Company, 518 So.2d at 992.
78. Poppel v. Culpepper, 50 Fla. at 520, 47 So. at 353.
79. Whittington v. Stanton, 63 Fla. at 315, 58 So. at 491.
80. 400 So.2d at 1286-1287.
81. 177 So.2d at 777.
82. 529 So.2d at 371. The account stated claim was defective because it failed to allege agreement as
to the resulting balance. However, if the case was properly plead, the plaintiff could have argued
account stated and open account in the alternative.
83. Gaskill v. May Brothers, Inc., 372 So.2d 98, 99-100 (Fla. 2d DCA 1979), rehearing denied.
84. See, e.g., Myrick v. St. Catherine Laboure Manor, Inc., 529 So.2d at 371.
85. See Poppel v. Culpepper, 50 Fla. at 520, 47 So. at 353.
86. 221 So.2d at 140-141.
87. 365 So.2d 365 (Fla. 3d DCA 1979).
88. Id.
89. 602 So.2d at 1361-1362.
90. 480 So.2d at 213.
91. 764 So.2d 747 (Fla. 2d DCA 2000).
92. Id. at 749.
93. 395 So.2d at 641.
94. 177 So.2d at 854.
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95. 177 So.2d at 777.
96. 529 So.2d at 370.
97. Id. at 371.
98. 462 So.2d 605 (Fla. 2d DCA 1985).
99. Id. at 606.

[nydeemarie]

 

From OC to 1099   (Condition)  Disputed? Defaulted? Unverifiable??? Fraud?

Alleged Statement information transferred how? and to whom?  as evidence of what?  violation of privacy?

DC creation of documents, more violations of privacy, no prior business, and suddenly a claim or cause??

I seem to remember reading a case that suggested a DC cannot claim damage for a self inflicted wound...

[Sharing Lights]

From OC to 1099   (Condition)  Disputed? Defaulted? Unverifiable??? Fraud?

Alleged Statement information transferred how? and to whom?  as evidence of what?  violation of privacy?

DC creation of documents, more violations of privacy, no prior business, and suddenly a claim or cause??

I seem to remember reading a case that suggested a DC cannot claim damage for a self inflicted wound...

Yes, self-inflicted.

It is all fraud.

But why and how?

I read decisions of Appellate Term on-line, involving credit-debt matters.

What can I tell you?

When these, so called - judges aid fraud and cover up for racketeering of other attorneys,
disregarding basic, basic principles of economics and jurisprudence, one can only come to conclusion that it is a mafia operation indeed.

Despair?

No way!

You patiently learn how they operate, what violate, and most importantly - real law -not what
they want you to believe what it is by their, pathetic manipulations and deceptions.


I read and read and, still, could not find these Mafiosos asking for actual proof of damages, proof of ownership, contract, assignemnts...


All they they were playing in people's face was, "the defendant failed to establish, the defendant
did not prove, the, the....
Hey, legally illegal mafia, WHO FAILED?

Not the people but your buddies who feed you, yes, those law firms -the racketeers of debt collection, who  pretend to be mere counsels for a client but who own debt collection agencies and split fees with private investors from other states, who manage to get hold of unverified data of Consumers under fraudulent pretexts of extending credit to them..

you know so well that THE PLAINTIFF MUST PROVE ITS CLAIMS BY ADMISSIBLE EVIDENCE!
Is that news to you or you invent your, own law, being paid salaries by us - THE PEOPLE?

You know the law and truth.

Would you know if someone robs you in daylight?

Would you be as kind?

Yet, you violate most judicial Cannons and the Oath to support the Constitution of the US.

And you laugh at the process, "we are invisible, who the hell is going to fight us, ah?
We are the JUDGES...WE ARE THE LAW!"

Hell's interpretation of law - that is!


Let's, for once, get the actual Assignment that your buddies lawyers plead as verified complained and see how much they paid for the batch of files and how much thy inflated each account!

You cover up that fraud and the question why is already answered in your so-called - decisions.

What a waste of life to become Appellate judges and dedicate your life, aiding extortion.

What a waste, indeed!

If that is an achievement, then, only in

misery of decaying soul betraying anything that human beings were intended to be.

Mafiosos in black robes....
 
Disgusting....

http://sovereignjustice.org/index.php?topic=454.msg3532#msg3532

Oh, sure, sure, sure, that is exactly what we have.
What a beautiful fairy tale and so well written, probably by the same Appelate Term...


Please fix my gaze, where those, ethical and sizzling with integrity judges are?

[Sharing Lights]

Even if plaintiff were asserting a claim for an account stated, plaintiff's statement [*4]would be totally inadequate to support it.

Plaintiff is not credible to assert that the documents were sent by the Assignor or by plaintiff without proof of mailing, but, either way, plaintiff's statements are not sufficient to establish mailing.

Plaintiff has not established to have personal knowledge of this account.

Certainly, plaintiff has nt proved to have mailed these statements herself.

Where an affiant does not have personal knowledge that a particular document was mailed, she can establish that it was mailed by describing a regular office practice for mailing documents of that type. ( Bad v Liberty Mut. Fire Ins. Co., 5 ADD at 171; 8112-24 Th Ave. Realty Corp. v Etna Ca's. & Sir. Co., 240 ADD 287, 288 [ST Dept 1997]; Residential Holding Corp v Scottsdale, 286 ADD 679, 680 [D Dept 2001]).

Consequently, plaintiff has failed to prove that the account statements were in fact mailed to defendant.


Moreover, the account statements could not be a true copy of the documents allegedly mailed to defendant when they indicate, on their face, that they were printed  after this action was commenced.

[Sharing Lights]

What is an account stated?

“An account stated has been defined as an agreement between parties
who have had previous transactions that the account representing those
transactions is true and that the balance stated is correct, together with a
promise, express or implied, for the payment of such balance." McHugh
v. Olsen, 189 Ill.App.3d 508, 514, 545 N.E.2d 379 (1st Dist. 1989).

"An account stated is merely a form of proving damages for the breach of
a promise to pay on a contract." Dreyer Medical Clinic, S.C. v. Corral,
227 Ill.App.3d 221, 226, 591 N.E.2d 111 (2d Dist. 1992).

A cause of action for an account stated therefore requires allegation and
proof that (1) there was a contract between the parties, such as a credit
card agreement or a contract for the sales of goods or services, Dreyer,
227 Ill.App.3d at 226-27, (2) a statement of account was sent to the party
sought to be held liable, and (3) the statement was agreed to, expressly or
by implication. Thomas Steel Corp. v. Ameri-Forge Corp., 91 C 2356,
1991 WL 280085 (N.D.Ill., Dec. 27, 1991). Agreement may be inferred
from payment or retention for a substantial period without objection.

However, both the basic agreement and the rendition of an account must
be proven. “[T]he rule that an account rendered and not objected to within
a reasonable time is to be regarded as correct assumes that there was an
original indebtedness, but there can be no liability on an account stated if
no liability in fact exists, and the mere presentation of a claim, although
not objected to, cannot of itself create liability. . . .

In other words, an account stated cannot create original liability where none exists; it is
merely a final determination of the amount of an existing debt.” Motive
Parts Co. of America, Inc. v. Robinson, 53 Ill.App.3d 935, 940, 369
N.E.2d 119 (1st Dist. 1977).

Thus, a cause of action for an account stated is founded on both (a) the
underlying contract and (b) the statement of account sent to the debtor and
agreed to by the debtor. Both must be attached.