Engelin v. Portfolio Recovery Associates, LLC

Summary

The Florida Second District Court of Appeal held that Portfolio Recovery Associates waived reliance on a Virginia choice-of-law provision by failing to raise or support its application during the proceedings. Because the underlying credit card agreement contained a unilateral attorney-fee provision, the court held that Sean J. Engelin was entitled to reciprocal prevailing-party fees under section 57.105(7), Florida Statutes. The court reversed and remanded for an award of attorney's fees.

Holdings

1. Portfolio waived its opportunity to rely on Virginia law because it failed to plead or otherwise timely raise the choice-of-law provision when it had opportunities to do so, including in response to Engelin's fee claim and pleadings.
2. As the prevailing party, Engelin was entitled to attorney's fees under section 57.105(7), Florida Statutes, and the unilateral attorney's-fee provision in the credit-card agreement.

Questions Presented

1. Whether Portfolio waived its ability to rely on the credit-card agreement's Virginia choice-of-law provision by failing to plead or timely invoke Virginia law before the fee issue became dispositive.
2. Whether Engelin, as the prevailing defendant in an account-stated action arising from a credit-card agreement containing a unilateral attorney's-fee provision, was entitled to reciprocal attorney's fees under section 57.105(7), Florida Statutes.

Disposition

reversed_and_remanded