Senate Bill 2633

AN ACT TO AMEND SECTION 11-53-81, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERM "OPEN ACCOUNT"; TO PROVIDE THAT WRITTEN DEMAND MAY BE DELIVERED TO THE ACCOUNT DEBTOR BY CERTAIN MEANS; 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 purposes of this section, the term "open account" means any transaction, including a series of transactions, involving the sale of goods or services, between an individual or entity, based on an oral promise or agreement, express or implied, for the account of the debtor to pay for the goods or services after the account debtor's receipt of the goods or services and an invoice or itemized statement of account for the delivered goods or services. An invoice or itemized statement of account may include written terms of sale.

(2) When * * * ~~any~~ a person or entity fails to pay an open account within thirty (30) days after * * * ~~receipt of~~ written demand * * * ~~therefor~~ for payment sent in the manner provided in this chapter correctly setting forth the amount owed and an itemized statement of the account in support * * * ~~thereof~~ of the demand, * * * ~~that~~ the person or entity shall be liable for reasonable attorney's fees, expenses and costs to be set by the * * * ~~judge~~ court for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff.

(3) (a) Written demand may be delivered to the account debtor by:

(i) Registered or certified mail;

(ii) 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 to the account debtor 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;

(iii) Hand delivery to the debtor or an authorized agent of the debtor as demonstrated by affidavit; or

(iv) First-class mail, postage prepaid;

(b) If the account debtor is an entity registered with the appropriate agency of a state for the purposes of doing business within a state, delivery under paragraph (a) of this subsection to the address of the account debtor or the address of the account debtor's registered agent on file with the state agency shall be sufficient for the purposes of this section.

(c) Evidence of receipt of written demand on behalf of the account debtor by the spouse of the account debtor, when they are living together as husband and wife, * * * ~~on behalf of the debtor~~ may be introduced as evidence of written demand on the debtor. * * *

(d) If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, 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 debtor, and if the judge, in his discretion, finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.

(4) If the person or entity sued on the open account prevails in the suit, the person or entity shall be entitled to reasonable attorney's fees, expenses and costs to be set by the court.

SECTION 2. This act shall take effect and be in force from and after July 1, 2021.