Attorney's Fees Awarded Against Debt Collector

Section 57.105(7) of the Florida Statutes provides for the reciprocal recovery of attorney's fees. So, if the debt collector sues a debt on a "contract" such as a credit card application and the debt collector does not prevail, the consumer/debtor may recover her/his attorney's fees against the debt collector.

The reciprocal provisions of Section 57.105(7) came to life for the consumer in Bushnell v. Portfolio Recovery Associates, L.L.C., 2018 WL 4374251 (Fla. Dist. Ct. App. Sept. 14, 2018). In Bushnell, a debt buyer initially brought and then voluntarily dismissed a collection lawsuit that was based on an account stated cause of action-that alleging that the consumer had been sent a statement of the amount owing and the consumer had not objected to the statement. The credit agreement provided for attorney fees for a prevailing creditor and Florida provides for reciprocal attorney fees. The question before the court was whether the reciprocal attorney fee statute applies where the collector's cause of action is not based on a breach of contract, but on the debtor's failure to object to a statement of account.

Although the debt buyer's case was not based upon a breach contract, the appellate court found it was based on a claim with respect to the contract. An account stated cause of action requires there to have been an agreement between the parties. Based on this reasoning, the court found the account stated cause of action is inextricably intertwined with the contract, and ruled the consumer was entitled to fees. The court also noted that in Florida there is no dispute that a consumer prevails on a lawsuit if the collector voluntarily dismisses the claim.

Court Grants Motion for Attorney's Fees Against Frontier Communications

After entry of a Final Judgment against Frontier Communications for violations of the Florida Consumer Collection Practices Act for billing the plaintiffs for services that they never received, Plaintiff, Kelly Garner filed a Motion for Attorney's Fees and Costs.

Frontier Communications, through its counsel, Charles Wachter of Holland & Knight, vigorously opposed the Motion and retained the services of Jason S. Lambert, a 2012 graduate of Stetson Law School, as its expert witness.

At a hearing on November 7, 2018, in Orlando, Florida, a County Court Judge, Faye Allen ruled that: (1) Plaintiff's counsel was entitled to recover his attorney's fees against Frontier Communications at the hourly rate of $400 per hour; and (2) Frontier was required to pay the Plaintiff's expert witness, James C. Hauser, at the hourly rate of $600 for a total expert witness fee of $13,440.

FCCPA Judgment Against Frontier Communications

An Orange County Judge entered a Final Judgment against Frontier Communications for violation of the FCCPA.     Kelly and Dawn Garner sued Frontier Communications for damages for violations of the Florida Consumer Collection Practices Act which prohibits debt collectors and any person from engaging in abusive, deceptive, and unfair practices.  Frontier Communications billed the Garners for services that they never received.    Frontier Communications was represented by Jennifer Lada and Charles Wachter of Holland & Knight.  A Final Judgment against Frontier Communications was entered awarding Plaintiff, Kelly Garner, statutory damages in the amount of $1,000.00.   All other claims were dismissed, including Frontier's Counterclaim.

On June 25, 2018, in accordance with the Final Judgment, Plaintiff filed his Motion for Attorney’s Fees and Costs.  In addition to seeking fees for legal services for  trial and pretrial legal activities, the Motion sought fees for litigating the amount of fees.  Holland & Knight vigorously opposed that portion of the motion seeking fees-for-fees relying on the holdling of  State Farm v. Palma.  However, Holland & Knight.was unable to produce any legal authority in support of its position that a plaintiff is not entitled to fees-for-fees in an FCCPA case.

Frontier Communications has a history of billing issues.  People battling Frontier Communications over Billing Issues, Overcharges.