Cypress Fin. Recoveries, LLC v. Schouest

249 So. 3d 985
CourtLouisiana Court of Appeal
DecidedMay 16, 2018
DocketNO. 17–CA–605
StatusPublished

This text of 249 So. 3d 985 (Cypress Fin. Recoveries, LLC v. Schouest) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cypress Fin. Recoveries, LLC v. Schouest, 249 So. 3d 985 (La. Ct. App. 2018).

Opinion

EDWARDS, JUDGE PRO TEMPORE, J.

Appellant, Cypress Financial Recoveries, L.L.C., appeals a trial court ruling which granted appellee's motion to dismiss, without prejudice, in an action to collect on an open account. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On November 18, 2013, appellant, Cypress Financial Recoveries, L.L.C. ("Cypress"), filed a petition in Second Parish Court for the Parish of Jefferson which alleged that appellee/defendant, Glenda Schouest ("Schouest"), had defaulted on a loan made to her by Care Credit, and that it owned the right to collect the principal sum owed by Schouest, together with interest and attorney's fees. While the record does not show that Schouest filed an answer, she did file a response to Cypress' interrogatories on July 18, 2016. On the same date, Schouest also filed a peremptory exception of no right of action that asserted Cypress was not the owner of the account at issue and, therefore, had no standing to collect the alleged debt. Following a September 16, 2016 hearing,1 the trial court granted Schouest's exception and allowed Cypress 15 days to amend the petition, which it did on September 29, 2016. Cypress did not seek supervisory review of the trial court's judgment. Schouest filed a second peremptory exception of no right of action on November 18, 2016, which reiterated the objections set forth in her original exception. On January 6, 2017, the trial court granted Schouest's exception and gave Cypress 30 days to amend the petition in order to establish *987ownership of the account as well as the accuracy of the amount alleged to be owed by Schouest. Again, Cypress did not seek supervisory review of the trial court's judgment. Cypress untimely filed its second amended petition on February 16, 2017 and, on March 24, 2017, Schouest filed a motion to dismiss the case, in which she asserted that Cypress' original and amending petitions did not establish that it was the owner of the account at issue or that it had a right to bring the action. On June 15, 2017, the trial court granted Schouest's motion.2 In an order dated June 22, 2017, the court rendered a judgment that formally granted Schouest's motion to dismiss based upon a finding that Cypress failed "to submit documentation establishing their Right of Action." On July 26, 2017, the trial court amended the June 22, 2017 judgment to clarify that the dismissal was without prejudice.

This timely appeal follows.

ISSUE RAISED ON APPEAL

On appeal, Cypress claims that the trial court erred in granting Schouest's motion to dismiss based upon the finding that it had no right of action.

LAW AND ANALYSIS

"[A]n action can only be brought by a person having a real and actual interest which he asserts." La. C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(A)(6). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Bailey Drilling Co. , 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm'n , 94-2015 (La. 11/30/94), 646 So.2d 885, 888. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo . Johnson v. Motiva Enters., LLC , 13-305 (La. App. 5 Cir. 10/30/13), 128 So.3d 483, 488.

In Louisiana, suits to collect credit card debit are treated as suits on an open account.3 CACV of Colorado, LLC v. Spiehler , 09-151 (La. App. 3 Cir. 6/3/09), 11 So.3d 673, 675. A party who demands performance of an obligation must prove the existence of the obligation. La. C.C. art. 1831. In order to sustain an action on an open account, a creditor bears the burden of proving the demand by a preponderance of the evidence. Ochsner Clinic Found. v. Arguello , 11-326 (La. App. 5 Cir. 11/29/11), 80 So.3d 622, 625. In order to prove an open account, the creditor must first prove the account by showing that it was kept in the course of business and by introducing supporting testimony regarding its accuracy. Id.

In addressing similar issues, this Court has previously considered various factors *988to determine whether a creditor has provided sufficient evidence to establish a prima facie right to collect on an unpaid debt. For example, in Midland Funding v. Urrutia , 13-459 (La. App. 5 Cir. 12/19/13), 131 So.3d 474, 477-479, we found that a creditor's assignee in its suit to collect on a debtor's unpaid credit card had established its right to do so by producing the following documentation: an affidavit of correctness of account certifying the balance and terms sued upon, as well as verifying the credit terms and the itemized statement of the account; multiple documents described as a bill of sale of multiple defaulted credit card accounts from the original lender to the collection agency; supporting documentation, including an affidavit by an employee of counsel for the debt collector, establishing that the law office received the case from the debt collector, the account number of the defaulted credit card and the last four digits of the defendant's Social Security number. A second affidavit from a "legal specialist" at the debt collection agency verified that the plaintiff was the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to the defendant's account (identified by number), and that she had access to and had reviewed the records pertaining to the account and was authorized to make the affidavit on the plaintiff's behalf. A third affidavit, from an employee of the original creditor, stated that the defendant's account was originally opened by the company, and specifically identified the account by name, account number, opening date and the last four digits of defendant's social security number.

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Bluebook (online)
249 So. 3d 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cypress-fin-recoveries-llc-v-schouest-lactapp-2018.