In Texas, a “suit on a sworn account” is not a separate cause of action. It is a sort of “procedural device” allowed under Texas Rule of Civil Procedure 185. It is used in certain types of breach of contract actions that involved the plaintiff furnishing goods or services to the defendant. The principle advantage of a “suit on a sworn account” is that it allows the plaintiff to establish a “prima facie” right of recovery on its sworn petition if the defendant does not file a sworn denial. A defendant’s filing a “general denial” will not be enough for him to survive the plaintiff’s motion for summary judgment in a suit on a sworn account. In other words, the defendant will loose the suit on a sworn account without ever getting his jury trial. (For this reason, I currently suspect that a suit on a sworn account may violate Article I, Section 15 of the Texas State Constitution, which says: “The right of trial by jury shall remain inviolate…”. However, I haven’t researched the case law to see if this issue has been raised, so I am uncertain. It would also require looking into the historical basis of the suit on a sworn account, and the history behind Article I, Section 15.)
The constitutionality of the suit on a sworn account notwithstanding, it is clear that such a suit must be regarding a breach of contract involving the furnishing of goods or services. A plaintiff who merely loaned money to the defendant so that the defendant could buy goods or services from a third party cannot properly file a suit on a sworn account. Such a plaintiff must file an ordinary breach of contract, or other, action, and the burden is on the plaintiff to prove the breach of a contract.
The reason it is important to understand something about the suit on a sworn account is because credit card companies and third-party debt collectors in Texas, who are suing on a credit card debt, frequently try to file a “suit on a sworn account” on a credit card debt, despite the fact that it is often improper to do so. (The main exception would be if the credit card were some sort of store credit card, which might fall under the auspices of TRCP 185.) The motive for doing so is easy to see: it would place the burden on you to prove that you didn’t owe the debt. However, since credit card companies do not normally furnish you with “goods or services” (they merely loan you money to buy those goods and services from a third party), it is usually improper for them to file a “suit on a sworn account”. I regard it as unethical and illegal, and if I were a judge, I would sanction credit card company lawyers that deliberately broke the law like this, but I’m not a judge. So, you will have to make sure that you don’t let the credit card company lawyer in your case get away with it.
Posts
