MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary, Division A; Accountability, Efficiency, Transparency
By: Senator(s) Doty
AN ACT TO AMEND SECTION 11-53-81, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERM "OPEN ACCOUNT" AS USED IN THE MISSISSIPPI OPEN ACCOUNT STATUTE; TO REQUIRE THE ACCOUNT CREDITOR TO SEND THE DEMAND TO A CURRENT ADDRESS OF THE ACCOUNT DEBTOR BY USING CERTAIN DELIVERY METHODS; 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" shall mean any commercial transaction, whether a single transaction or a series of transactions, involving the sale of goods and 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 and services after the account debtor's receipt of the goods and services and an invoice or invoices for them. For the purpose of this chapter, an "open account" may include a sale and provision of goods and 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 and
services fails to pay an open account within thirty (30) days after * * * the account creditor has sent
written demand therefor in the manner provided in this chapter correctly
setting forth the amount owed and an itemized statement of the account in
support thereof, that person shall be liable for reasonable attorney’s fees,
expenses and costs 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; or (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; or (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 with 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 (1) 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 shall prevail in the suit, he shall be
entitled to reasonable attorney’s fees, expenses and costs to be set by
the * * * court.
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 said 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. This act shall take effect and be in force from and after July 1, 2020.