MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary, Division A
By: Senator(s) McCaughn
AN ACT TO AMEND SECTION 11-53-81, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERM "OPEN ACCOUNT"; TO MAKE TECHNICAL REVISIONS; TO PROVIDE THAT AN OPEN ACCOUNT INVOICE OR ITEMIZED STATEMENT OF THE ACCOUNT MAY OR MAY NOT INCLUDE WRITTEN TERMS OF SALE; TO CLARIFY THAT THIS SECTION DOES NOT REQUIRE WRITTEN DEMAND TO BE MADE BY ANY CERTAIN MEANS; TO PROVIDE THAT THIS SECTION DOES NOT APPLY TO RETAIL SALES INSTALLMENT CONTRACTS THAT ARE ASSIGNED TO LENDERS WHO ARE LICENSED UNDER SECTIONS 75-67-201 THROUGH 75-67-247; 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 section, the term "open account" includes, but is not limited to, any and all accounts for which a part or all of the balance is owed, whether the account is for a single transaction, multiple transactions, or a series of transactions, whether or not there was an expectation of future transactions, and whether or not the parties agreed upon a fixed price. An "open account" may involve the sale of goods or services or both between persons or entities or both, and may be based on an oral or written promise or an agreement, express or implied, for the debtor to pay the account. "Open accounts" shall include debts incurred for professional services, including, but not limited to, legal services, medical services, and construction services. The term "open account" shall be broadly construed.
(2) When * * *
a person or entity fails to pay an open account within thirty
(30) days after receipt of written demand * * *
for payment correctly setting forth the amount owed and an invoice or
itemized statement of the account in support * * * of the demand, * * *
the person or entity shall be liable for reasonable attorney's
fees 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 or counter-plaintiff, as the case may be. An open-account invoice
or itemized statement of the account may or may not include written terms of sale.
(3) Evidence of
receipt of written demand by the spouse of the 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. If that person who is being sued on the
open account * * *
prevails in the suit, he or she shall be entitled to reasonable
attorney's fees to be set by the * * * court.
(4) If delivery of
written demand on the 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 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 debtor. This section does not require written demand to be made
by any certain means.
(5) This section shall not apply to retail sales installment contracts that are assigned to lenders who are licensed under Sections 75-67-201 through 75-67-247.
SECTION 2. This act shall take effect and be in force from and after July 1, 2022.