Affirmative Defenses: Prior Course of Dealing


No Prior Course of Dealing
This is a defense to a lawsuit based on a cause of action for account stated.

In order for a plaintiff to prevail on a claim (cause of action) for account stated, he must allege and prove there were prior dealings between the parties and a reasonably long history of periodic billing that the defendant timely and routinely paid over an extended course of time prior to the lawsuit. Since this is an element of the plaintiff’s case, the affirmative defense of “No Prior Course of Dealing” is offered to show the essential element of this cause of action does not exist.

The most common way to defeat an action for account stated is to show that the debt claimed is new, i.e., that there was no prior course of dealing between the parties or, at best, only a very short period with very few transactions.

Sending an invoice or other demand for payment of a debt that includes language such as, “Failure to dispute the amount of this debt will result in the legal conclusion that the debt is owed,” may intimidate unwary people into paying the claimed debt. Such a demand, however, does not give rise to a cause of action for “account stated”.

A lawsuit on this cause of action may result in an unjust judgment if the defendant is unfamiliar with the law – in particular, the essential fact elements of the cause of action that the plaintiff must allege and prove by the greater weight of admissible evidence.

Failure to respond to a demand letter, without more, is insufficient to give rise to this cause of action.

Suing for account stated when essential elements are clearly absent, may expose the party bringing the action to a counterclaim for abuse of process if it can be shown that the plaintiff intended to intimidate the debtor and there was no prior course of dealing.


Since the Debt Collector is not the original creditor and you have had no prior dealing or business with them this defense should prevent an unjust judgment against you.

Will other members please add their comments to this defense or ejection of it.

LisaB4657

At first glance it sounds like a plausible method for defending against an "account stated" claim. But then the plaintiff can make the argument that they are the assignee of the original creditor and have therefore "stepped into the shoes" of the original creditor. That would mean that the prior course of dealing would be inferred as long as there had been a prior course of dealing between the defendant and the original creditor.

Another issue is that the account stated claim is often merely one count in a standard form of complaint that contains several counts for the same debt. So if the court determines that the account stated claim is not valid there is usually at least 2 or 3 more claims for the same debt that will probably be considered valid.

But hey...it's worth a try!

mr.yet

Granted an assignee would have rights, but Debt Collector who purchase the debt most likely would not, That is where one would have not prior dealing with. As, we all know purchasing old debt is very big business today.

Thank you LisaB for you comments greatly appreciate it.