A Florida Appeals court has overturned a lower court’s decision and remanded a case back to a state court after ruling that an individual who was sued by a collection agency can recover her attorney’s fees because she fought off an account stated lawsuit.
A copy of the ruling in the case of Bushnell v. Portfolio Recovery Associates can be access by clicking here.
The defendant in this case had filed suit against the plaintiff seeking payment on an unpaid credit card debt. The defendant fought back against the suit, which the plaintiff then voluntarily dismissed. The plaintiff then filed suit for attorney’s fees, relying on a state statute in Florida and the underlying agreement between her and the original creditor.
The state statute — 57.105 — contains a reciprocity provision:
If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.
The lower court denied the motion for the plaintiff to recover attorney’s fees because the underlying action was not “action to enforce the contract” as required by the law. The plaintiff argued that the lower court erred in its interpretation of the statute, which the appeals court agreed with.
The main thrust of the first requirement of section 57.105(7) is determining whether there is a contractual provision allowing for the recovery of fees by a party who is required to take any action to enforce the contract. There is no dispute that the credit card agreement at issue has such a provision. The second statutory requirement, if met, allows the other party to recover fees even though the agreement provides for the recovery of fees only in favor of one party. The main thrust of the second requirement is determining whether the movant is the prevailing party in an action with respect to the contract.