APPEAL FROM THE SECOND PARISH COURT PARISH OF JEFFERSON,
STATE OF LOUISIANA NO. 116-808, DIVISION "B"
HONORABLE RAYLYN R. BEEVERS, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, CYPRESS FINANCIAL
RECOVERIES, LLC Gregory M. Eaton, Kevin J. Gillie
Michael L. Lancaster COUNSEL FOR DEFENDANT/APPELLEE, GLENDA
SCHOUEST William G. Cherbonnier, Jr.
composed of Judges Marc E. Johnson, Robert A. Chaisson, and
Marion F. Edwards, Judge Pro Tempore
F. EDWARDS, JUDGE PRO TEMPORE JUDGE
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.
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,  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 ownership 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. 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
timely appeal follows.
RAISED ON APPEAL
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.
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-Baily 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.
Louisiana, suits to collect credit card debit are treated as
suits on an open account. 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
addressing similar issues, this Court has previously
considered various factors to 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. The same affidavit attested that the
records of the original creditor indicate that the account
was sold to the debt collector, and that the original
creditor retained no ownership interest in the account after
it was sold. Attached thereto was data printed by the debt
collector from electronic records provided by the original
debtor, pursuant to the Bill of Sale/Assignment of Accounts,
in connection with the sale of accounts from the original
creditor to the debt collector. The data was information
relating specifically to the defendant's account and
contained his name, address, birthdate, redacted social
security number and account number of the credit card in
question. Also included in the documentation were three bills
of sale of accounts from the original creditor to debt
collector, and the Purchase and Sale agreement between the
original creditor to the debt collector.
instant case, Cypress' original petition, in relevant
part, offered the bare assertion that it is "the owner
of all rights, title and interest in this receivable issued
through GEC Retail Bank." Shouest challenged
Cypress' claim in her exception of no right of action. In
response to Schouest's motion, Cypress attached four
exhibits to its memorandum in opposition,  which were
identified as follows: "Exhibit A - CareCredit/GECRB
Monthly Statement dated 10/10/2012"; "Exhibit B -
Bill of Sale titled "Cypress PSCC MP - May 2013";
"Exhibit C - Affidavit of Sale of Account by Original
Creditor, signed May 23, 2013"; and "Exhibit D
-Affidavit of Correctness of Account, signed December 7,
2013." At the September 16, 2016 hearing on
Schouest's exception, in which no evidence was
introduced and no witnesses testified, the trial
court stated on the record its finding that Cypress'
petition did not show that Cypress had a legal right to
attempt to collect the debt. Rather than dismiss the action,
however, the trial court gave leave for Cypress to amend its
petition within 15 days.
first supplemental and amending petition, filed on September
29, 2016, Cypress added the following paragraphs: (31)
The defendant, GLENDA SCHOUEST (SSN XXX-XX-XXXX), individual
account holder, domiciled in BARATARIA, LA, knowingly,
intentionally, and purposefully opened and agreed to all
contract terms and conditions applicable to a CARE CREDIT
account issued through GEC RETAIL BANK bearing account
After opening the Account, Defendant knowingly,
intentionally, and purposefully made payments on the Account,
the last of which was a payment of $400.00 on or about March
The subject account was charged-off on October 10, 2012, in
the amount of $6, 496.88.
On or about May 19, 2013, the subject account and all rights,
titles, and interests thereto was sold to Plaintiff, Cypress