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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.
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