Second DCA Sides with Consumer on Attorney Fees

A great opinion came out of the Second District Court of Appeals recently, the case of Katrina Bushnell v. Portfolio Recovery Associates, Case No. 2D17-429. Portfolio is what is commonly called a “debt buyer” and anyone who has read our blogs knows our office has had a great deal of success fighting cases with debt buyers for our clients.

Katrina Bushnell v. Portfolio Recovery Associates

Miss Bushnell was sued for credit card debt by Portfolio and before the Court entered a judgment in favor of either side or an order dismissing the case Portfolio voluntarily dismissed its complaint, ending the lawsuit.

Afterwards Miss Bushnell filed a motion seeking attorney fees pursuant to the contract, as the credit card contract stated that the prevailing side was entitled to attorney fees as to any case rooted in the contract. In opposition Portfolio argued that their case was not rooted in a contract, rather, they brought a claim for “account stated”, a legal claim which is in many ways very similar to breach to contract but not identical to it. Portfolio further argued that since they did not bring a claim for breach of contract the dispute was not about a contract and thus the fee provision in the contract, which was only applicable to contract-based disputes, did not apply.

The Second DCA then ruled that even though the lawsuit was account stated, still, the facts underlying the matter related to a contract and thus the contract provision applied and the consumer should be able to recover their attorney fees.

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Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems. We have saved over 1,800 homes from foreclosure, eliminated $100,000,000 in mortgage principal and consumer debt, and have collected millions of dollars on behalf of our clients due to bank, loan servicer, and debt collector violations, negligence and fraud.

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This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any legal issues related to the matters discussed in this article as the applicability of state, local and federal laws may vary.