                                MEMORANDUM OPINION
                                       No. 04-10-00296-CV

                                   LTD ACQUISITIONS, LLC,
                                          Appellant

                                                 v.

                                         Glenn R. COOK,
                                             Appellee

                     From the County Court at Law No 2, Bexar County, Texas
                                    Trial Court No. 351,513
                            The Honorable Irene Rios, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice, concurring in the judgment only
                 Marialyn Barnard, Justice

Delivered and Filed: January 5, 2011

REVERSED AND REMANDED

           This is an appeal from a summary judgment in a suit to collect a credit card debt.

Appellant LTD Acquisitions, LLC (“LTD”) appeals, claiming the trial court erred in granting

summary judgment in favor of appellee Glenn R. Cook based on his contention that the statute of

limitations had run and the suit to collect the credit card debt was barred. More specifically,

LTD contends the trial court erred in: (1) granting summary judgment for Cook based on Cook’s

affirmative defense of limitations; (2) relying on the date of the last payment as the date the
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statute of limitations began; and (3) awarding attorney’s fees in the absence of actual or statutory

damages.

                                          BACKGROUND

          LTD filed suit against Cook to recover a $39,831.31 debt stemming from his credit card

account with Chase Bank USA, NA. LTD acquired the debt from Chase Bank, and filed suit on

July 31, 2009.     Cook counterclaimed that LTD violated the Federal Fair Debt Collections

Practices Act (“the FDCPA”) and the Texas Debt Collection Act (“the TDCA”) by filing suit to

collect the debt after the four-year statute of limitations expired. Cook then filed a motion for

summary judgment based on the affirmative defense of limitations. Attached to Cook’s motion

for summary judgment was evidence establishing the date of the last payment on the credit card

account—July 21, 2005. The trial court granted summary judgment for Cook based on the fact

that the limitations period began on July 21, 2005, and LTD filed suit after the four-year

limitations period expired. The trial court then awarded attorney’s fees to Cook in the amount of

$1,000.

                                           DISCUSSION

                                       Standard of Review

          Cook filed a traditional motion for summary judgment. We review a traditional motion

for summary judgment de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005). Because Cook moved for summary judgment based on the affirmative defense of

limitations, Cook was required to conclusively establish that the four-year limitations period

expired. See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746,

748 (Tex. 1999). We will affirm the motion for summary judgment if Cook establishes there are

no genuine issues of material fact and establishes the affirmative defense of limitations. He is



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then entitled to judgment as a matter of law. See Gonzalez v. City of Harlingen, 814 S.W.2d 109,

112 (Tex. 1991) (stating that if statute of limitations is established, suit is barred as matter of

law). Once limitations is established, LTD must then raise a fact issue to avoid its effect.

KPMG, 988 S.W.2d at 748.

                                      Statute of Limitations

       In LTD’s first and second issues, LTD contends the trial court erred in granting summary

judgment in favor of Cook based on the court’s determination that the statute of limitations

began to run and LTD’s cause of action accrued on his credit card debt on the date of his last

payment to Chase Bank. We agree.

       LTD argues credit card debt actions can be brought as an action on an “open account,”

and the applicable statute of limitations is section 16.004(c) of the Texas Civil Practice and

Remedies Code (“the Code”). Section 16.004(c) states, “[a] person must bring . . . an action on

an open or stated account . . . not later than four years after the day that the cause of action

accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(c) (West 2002). Cook counters that the

debt action falls under section 16.004(a)(3) of the Code, which states, “[a] person must bring suit

on the following action not later than four years after the day the cause of action accrues: . . .

debt . . . .” Id. § 16.004(a)(3). Although not originally pled as an open account, in its motion to

reconsider, LTD argued a credit card account may be brought as an action on an open account.

We agree.

       A credit card account may be brought as an action on an open account because through

the regular course of dealings, the transactions between the parties create a creditor-debtor

relationship, and as long as the account is still open, the parties expect to conduct further

dealings. Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 409 (Tex. App.—El Paso 2009, no



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pet.); see also Amresco Bureau Investors LP v. Kader, Civ. A. No. H-05-4261, 2007 WL

1520996, at *4 n.4 (S.D. Tex. 2007) (mem.) (finding that credit card debt action is action on

“open or stated account” under section 16.004(c)); Austin Hardwoods, Inc. v. Vanden Berghe,

917 S.W.2d 320, 326 (Tex. App.—El Paso 1995, writ denied) (explaining credit agreement

creates an open account).

        As an action on an open account, it must be determined when the cause of action accrued

because that marks the beginning of the limitations period. Under the Code, “the cause of action

accrues on the day that the dealings in which the parties were interested together cease.” TEX.

CIV. PRAC. & REM. CODE ANN. § 16.004(c). Cook argues the parties’ dealings ceased and

limitations began to run on the date of his last payment. To support this position, Cook only

provided evidence of the date of his last payment to Chase Bank. We hold evidence of last

payment is not conclusive evidence of when the dealings between the parties ceased.

        Under Texas law, because the statute of limitations begins on “the day that the dealings in

which the parties were interested together cease,” TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.004(c), Cook was required to conclusively establish that the date of the last payment was

when the dealings between the parties ceased. We hold Cook did not meet this burden. Cook’s

evidence is insufficient to conclusively establish, as a matter of law, that the dealings between

Cook and LTD ceased on the date of the last payment and that the statute of limitations began

running on that date. Therefore, we sustain LTD’s first and second issues and hold the trial court

erred in granting summary judgment in favor of Cook based on limitations and remand this

matter to the trial court for further proceedings. 1




1
  Our disposition should not be construed as a comment on LTD’s contention that the cause of action accrues, and
the limitations period begins, when the account is closed or charged off.

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                                           Attorney’s Fees

       In its third issue, LTD contends the trial court erred in awarding attorney’s fees in the

absence of statutory or actual damages. However, we need not address this issue because Cook

was awarded attorney’s fees based on the fact he was the prevailing party under the Federal Debt

Collection Practices Act and the Texas Debt Collection Act. See 15 U.S.C. § 1692k(a)(3)

(2006), amended on other grounds by Dodd-Frank Wall Street Reform and Consumer Protection

Act of 2010, Pub. L. No. 111-203, 124 Stat. 1376 (stating that “in the case of any successful

action to enforce the foregoing liability, the costs of the action, together with a reasonable

attorney’s fee” will be awarded); TEX. FIN. CODE ANN. § 392.403(a)-(b) (West 2006) (stating that

debtor must be successful in obtaining injunction or actual damages to receive attorney’s fees).

Due to our disposition of Cook’s summary judgment, he is no longer the prevailing party and, at

this time, no longer entitled to attorney’s fees under the statute.

                                            CONCLUSION

       Based on the foregoing, we hold the trial court erred in granting summary judgment to

Cook based on his defense of limitations. We therefore reverse the trial court’s summary

judgment in favor of Cook and remand this matter for further proceedings.


                                                   Marialyn Barnard, Justice




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