MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Banking and Financial Services
By: Representative Ladner
AN ACT TO AMEND SECTION 11-53-81, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERM "OPEN ACCOUNT"; TO REQUIRE AN OPEN ACCOUNT CREDITOR TO SEND A DEMAND TO A CURRENT ADDRESS OF AN ACCOUNT DEBTOR THROUGH CERTAIN MEANS; TO PROVIDE THAT THE ACCOUNT DEBTOR SHALL BE LIABLE FOR EXPENSES AND COSTS IN ADDITION TO ATTORNEY'S FEES; TO BRING FORWARD SECTION 11-53-67, MISSISSIPPI CODE OF 1972, WHICH RELATES TO PRODUCING A BILL FOR FEE PAYMENT, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-53-81, Mississippi Code of 1972, is amended as follows:
11-53-81. (1) For the purpose of this chapter, the term "open account" means any commercial transaction, whether a single transaction or a series of transactions, involving the sale of goods or provision of services, between individuals or entities, based upon an oral promise or agreement for the account debtor to pay the account creditor for the goods or services after the account debtor's receipt of the goods or services and an invoice or invoices for them. An open account may include a sale and provision of goods or services on written terms if those terms issued by the account creditor are not agreed to in writing by the account debtor.
(2) When * * * the account debtor of goods or
services fails to pay an open account within thirty (30) days after * * * the account creditor has sent a
written demand * * *
for payment in the manner provided in this chapter correctly setting
forth the amount owed and an itemized statement of the account in support * * * of the demand, * * * the account debtor shall be
liable for reasonable attorney's fees, expenses and costs to be set by
the * * * court
for the prosecution and collection of such claim when judgment on the claim is
rendered in favor of the * * *plaintiff account creditor. The account creditor shall
send the demand to a current address of the account debtor: (a) by registered
or certified mail; (b) through priority mail or priority mail express of the
United States Postal Service or through a commercial firm that is regularly
engaged in the business of document delivery or document and package delivery
in which the sender has directed that delivery be not later than two (2)
business days following the day on which the document is received for delivery
by the United States Postal Service or the commercial firm; (c) by electronic
mail if the sender has chosen the option of a delivery receipt; or (d) by hand
delivery as shown by affidavit. If the account debtor is an entity on file any
state's Secretary of State's office, sending a copy of the open account claim
to the entity's address or the registered agent's address on file with one of
the state's Secretary of State shall satisfy the requirement of a current
address.
Evidence of receipt of written demand by the
spouse of the account debtor when they are living together as husband
and wife on behalf of the account debtor may be introduced as evidence
of written demand on the account debtor. If that person sued on the open
account * * *
prevails in the suit, he or she shall be entitled to reasonable
attorney's fees, expenses and costs to be set by the * * * court.
(3) If delivery of written demand on the account
debtor is attempted, but not accomplished because circumstances made delivery
of written demand impossible or impractical, a notation, on the envelope
containing the written demand, made by the person attempting delivery stating
the date of the attempted delivery, the reasons why delivery could not be
accomplished along with the initials of the person attempting delivery and
making * * *
the notation may be introduced as evidence of written demand on the account
debtor, and if the * * *
court in * * *
its discretion finds that sufficient evidence of due diligence in
delivery of written demand has been made, * * * the court may make a conclusion of
written demand for purposes of justice and find that there has been written
demand on the account debtor.
SECTION 2. Section 11-53-67, Mississippi Code of 1972, is brought forward as follows:
11-53-67. Fees and costs shall not be payable by any person until there be produced to the person chargeable with the same a bill, or account in writing, containing the particulars of such fees, signed by the clerk or officer, in which shall be intelligently expressed and specified each section of the law, and, if any, each paragraph or subdivision of section by virtue of which each fee is charged. If any fee shall be paid without the production of such bill, the party paying the same shall at all times be entitled to demand and have from the officer receiving the same a copy of such bill without charge.
SECTION 3. This act shall take effect and be in force from and after July 1, 2020.