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You Can’t Have Your Cake and Eat It Too: Debtor Cannot Claim a Standing Defense and Also Obtain Prev


Florida is known as a consumer friendly state. It is not uncommon for Florida debtors to receive a "pass" on filing contradictory pleadings. In many cases involving third party collection agencies who have rightfully purchased consumer debt, Florida debtors will claim that third party collection agencies lack standing to file their lawsuits.

In some instances, judges will actually agree with the debtors and dismiss lawsuits. The debtors’ attorneys will respond by filing motions for attorney’s fees, pursuant to Section 57.105(7), Florida Statutes, as Florida is one of a few states that allow for reciprocal attorney’s fees to the prevailing party.

In HFC Collection Center, Inc. v. Alexander, the debtor was sued for $8,964.97 pursuant to a credit card agreement over an unpaid American Express bill that had been reportedly assigned to HFC Collection Center, Inc. (“HFC”), a third party collection agency. 2016 WL 1600324, *1 (Fla. 5th DCA 2016). The debtor raised several affirmative defenses, including, but not limited to, that HFC could not show an assignment of her American Express account and therefore lacked standing to bring the suit. Id.

After filing the answer, the debtor moved for summary judgment on her affirmative defenses, which the trial court granted after it determined that HFC could not show that it was assigned the debtor’s American Express account. Id. at *2. The debtor then moved for her attorney’s fees as the prevailing party, and the trial court awarded her $20,371.65 in attorney’s fees. Id.

On appeal to the Fifth District Court of Appeal, the appellate court pointed out that: “There is no dispute that there was a contract between American Express and [the debtor]; however, HFC was adjudicated to be a stranger to the contract. The county court’s determination that HFC was not the assignee of the credit card agreement between American Express and [the debtor] means there was never a contact between HFC and [the debtor].” Id.

The appellate court further added that, “[the debtor] cannot employ section 57.105(7) as a basis for an attorney’s fees award after she proved that HFC never became a party to the contract.” Id.

In other words, this is a contradictory pleading. You can't file a claim for attorney's fees under a contract you also claimed the party never entered!

Touché!

About the Firm:

Gill Law Firm focuses its practice in the areas of commercial debt recovery, small business and nonprofit startups. Being centrally located in Delray Beach, Florida, the firm is located within driving distance of a majority of Florida’s population.

To find out how the firm may help your organization collect its receivables, please contact Wayne Gill by phone at (561) 454-0301 or via email at awgill@gillattorneys.com.

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