People are often confused about how attorney’s fees work – when do you have to pay your own, and when does the losing party have to pay? This question is very important when you are faced with a decision of whether to “take someone to court”. In the United States, each party pays their own attorney’s fees unless a contract or statute states otherwise. Often a person is denied justice unless a contract or statute allows recovery of attorney’s fees because it simply does not make financial sense to right all wrongs.
Many consumer protection or debt harassment protection statutes such as the FCCPA, FDCPA, and the FCRA provides for the recovery of attorney’s fees. Attorneys act essentially like mini attorney generals in that regard. We can sue for someone under a statute that provides payment from an offending creditor for instance.
Contracts are another way in which attorney’s fees are recoverable. You might read in a mortgage or debt related contract that the creditor is permitted to obtain its attorney’s fees and court costs if it has to pursue legal action to collect a debt. While these contracts don’t clarify this, an attorney’s fee provision in a contract goes both ways, at least in Florida. If the consumer is the prevailing party, the consumer can obtain their attorney’s fees and court costs as well.
Florida Statute Section 57.105(7) on its face applies to “contracts” which authorize attorney’s fees for only one party to the contract:
(7) 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 in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.1.30
In the case of Madl v. Wells Fargo Bank, N.A.,1.40 there was a mortgage contract. That was not disputed. There was a dispute, of course, but it was about standing to bring the suit to enforce that contract.
In a unanimous opinion in this case, Florida’s Fifth District Court of Appeal applied the language of Section 57.105(7). “Section 57.105(7) transforms a unilateral right into a reciprocal right so that all parties to the contract are entitled to recover attorney’s fees upon prevailing.”1.50 The appellate panel awarded appellate attorney’s fees to the homeowners who prevailed in this action to enforce the mortgage contract against them.
As the Fifth District itself pointed out,1.60 there was authority from the Fourth District which appears to stand to the contrary.
The Fifth DCA’s Madl decision was expressly approved by the Supreme Court of Florida in Page v. Deutsche Bank Trust Co. Americas.1.70 In that case, the Fourth DCA en banc expressed its contrary view, which the Supreme Court rejected.1.80 In short, where as in Page the statute contains two clauses, both of which are satisfied in the given case, and the first statutory clause provides that there be a fee provision in the underlying contract to a party while the statute’s second clause requires that the other party seeking attorney’s fees be the prevailing party in an action on that contract, then under such a statute attorney’s fees may be awarded to the party seeking them even if the contract provides only that another party, a non-prevailing party if you will, can recover attorney’s fees.1.90
Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) & on rehearing (Fla. 5th DCA 2018), review dismissed, No. SC18-966, 2019 WL 5963521 (Fla. 2019).
Both of the statutory conditions must be satisfied. “Here, they are satisfied.” Page, 308 So. 3d at 959.