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02/28/14 It's The Law: Attorney's Fees Not Always Available

lt's The Law

Attorney's Fees Not Always Available

(02/28/14)

Question:

My former friend owes me a lot of money. He offered to pay a portion. He tells me, if I sue, I will have to pay my attorney's fees and they will not be included in the judgment. My attorney says the fees in this case can be more than $10,000. Will I get my fees paid by my dead beat former friend?

Answer:

Attorney's fees are generally recoverable only if recovery is provided by the contract in issue or a statute. There is no statute providing for recovery of attorney's fees generally when attempting to collect a debt. If you have no paperwork with your former friend providing for recovery of attorney's fees as part of collection action, you may be out of luck. If you are attempting to collect under a contract and the contract provides that your former friend is entitled to an award of an attorney's fees in litigation you are the beneficiary of Florida Statutes. Some years ago, the legislature decided that a one sided of attorney's fees provision is unfair. In 1988, the legislature amended Section 57.105 Florida Statutes. That statutes now provides 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 any action. That statute makes attorney's fees provisions in contracts bilateral, which could be a big help to you.

If your debt is based on a bad check, you also might be in luck. Section 68.065 of Florida Statutes has special provisions for bad checks. If you follow the statutory requirements, attorney's fees can be awarded by the court.

First step under the statute is to notify the debtor the check was dishonored and that the debtor has 30 days to pay the amount of the check plus a service charge. If not paid within 30 days, you can then proceed with suit for the amount of the bad check, three times the amount of the check as damages plus reasonable attorney's fees and court costs.

If the bad check statute does not apply, you may still have an opportunity to get judgment for most of your fees. Section 768.79 of Florida Statues (Rule 1.442 of Florida Rules of Civil Procedures as adopted by the Florida Supreme Court)establish a procedure under which you can serve a demand for judgment on the defendant in which you, demand the defendant agree to entry of judgment in the said amount. If the demand is not accepted by the defendant within 30 days and you recover a judgment in an amount of at least 25% greater than the demand, you will be entitled to reasonable attorney's fees and costs incurred from the date of the demand. Drawback to this approach, when you are suing for a clear debt is that you have to offer to accept less than full payment as a tradeoff for possibility of recovering attorneys' fees. If the defendant accepts, judgment is entered for the lesser amount. Demands for judgment, almost often used where the amount of damages is less certain, as in personal injury cases. But, you might want to use it in your case. I suggest you discuss it with your attorney.

After you obtain a judgment, the legislature believes you should be paid in full. Section 57.115 Florida Statutes, provides that the court may award against a judgment debtor reasonable costs and attorney's fees incurred by the judgment creditor in connection with execution on a judgment. In determining the amount of costs and fees, the court is required to consider;

  • Whether the judgment debtor attempted to avoid or evade payment, and
  • Other factors as may be appropriate, to determine the value of services provided or the necessity for incurring costs in connection with execution of the judgment.

Other factors generally considered by the Court all the prevailing hourly rate of attorneys in your area for debt collection, the expertise of your attorney and the efficiency of the collection effort.

There may be other provisions of Florida statutes, Common Laws or even procedures that will allow you to recover part or all of your attorney's fees. Before giving in to your friend's claim, I suggest you discuss the facts of your case with an experienced attorney. With good legal advice, you should be able to make the best of your situation.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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