Proposed Order Granting Attorney Fees

IN THE STATE COURT OF CHEROKEE COUNTY STATE OF GEORGIA

CAPITAL ONE BANK (USA), N.A., CIVIL ACTION

Plaintiff

FILE NO: 08-XX-0000

V

JOE BLOE, Defendant

ORDER GRANTING DEFENDANT’S MOTION FOR ATTORNEY FEES _______________________________________________________________________

The matter of Defendant’s Motion For Attorneys Fees under O.C.G.A. § 9-15-14is currently before this Court. After careful consideration of the facts before me, I GRANT Defendant’s Motion.

FINDINGS On or around July 5, 2005 Defendant alerted Plaintiff that she had been a victim of identity theft which resulted in a fraudulent account with Plaintiff who, in August 2005 provided Defendant with a Fraud Information Form which Defendant completed and sent back to Plaintiff. After more than two years, on or around February 6, 2008, Plaintiff decided to attempt collection of said debt from the Defendant and filed a complaint in this Court. On or around February 11th and again on or around March 17th 2008, Defendants notified the law firm retained by Plaintiff that the debt was incurred through identity theft and that the Plaintiff had deemed the account to be fraudulent.

Plaintiff’s filing of the complaint in pursuance of collecting the debt through legal action, caused Defendant to obtain legal counsel to protect herself. The Defendant paid Eight Hundred Fifty Dollars ($850.00) to legal counsel for defending against the action filed against her. Defendant has submitted to the Court, a letter she received from the Plaintiff on or around March 27, 2009in which Plaintiff indicates the attempt to collect the debt was an “internal error”. Subsequently on April 29, 2009 Plaintiff voluntarily Dismissed the Case without Prejudice. Defendant Moved this Court for the Grant of Attorney Fees pursuant to O.C.G.A. § 9-15-14 on May 26, 2009.

CITATIONS OF AUTHORITY O.C.G.A. § 9-15-14 allows the Court, without a jury to determine1, and access necessary and reasonable attorneys fees in any civil action of any court of record of this state against any party with respect to which there existed a complete absence of any justiciable issue of law or fact2. The statute also allows the Court to assess reasonable and necessary attorney's fees and expenses of litigation in any civil action if, upon the motion or the court itself, it finds that an attorney or party brought an action, or any part thereof, that lacked substantial justification 3. The evidence before this Court shows that two years prior to filing this case, Plaintiff knew the debt they were attempting to collect was the result of identity theft, or other fraudulent activity which the Defendant had no knowledge or part of. More than two years passed after Plaintiff had accepted the account as fraudulent, then without further communication with Defendant, filed suit causing Defendant to incur legal expenses. O.C.G.A. §9-15-14(f)

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O.C.G.A. § 9-15-14(a)

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O.C.G.A. § 9-15-14(b) “"lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious” 3

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The Defendant has Moved this Court for an award of attorney fees within fortyfive days as required by O.C.G.A. § 9-15-14(e), and this Court finds that Defendant is entitled to the grant of and that the attorneys fees were both reasonable and necessary. Under O.C.G.A. § 9-15-14(a), an award of attorney fees is required when the trial court determines that a party has asserted a claim with respect to which there is a complete absence of any justiciable issue of law or fat, and therefore can be no reasonable belief that a court would accept the asserted claim. See Hall v. Hall, 241 Ga.App. 690, 691, 527 S.E.2d 288, 289 (1999). See also the Supreme Court of Georgia May 4, 2009 ruling in Century Center at Brasselton, LLC, et., al., v. Town of Braselton, et., al. No.: S09A0647 in holding because the complaint filed “lacked substantial justification as provided in O.C.G.A. § 9-15-14(b)” the Court deems that “there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that the court would accept the asserted claim or position”. Further, the Plaintiff had already deemed the debt to have been fraudulent; filing a complaint against the Defendant was “substantially frivolous, groundless or vexatious” Kinard v. Worldcom, Inc. 244 Ga. App. 614, 616, 536 S.E.2d 536, 538 (2000). Finally, the attorneys fees sought are reasonable. Due to Plaintiff’s actions the Defendant was forced to incur sums in the amount of $850.00. The costs to Defendant would not have been incurred had the Plaintiff and their attorneys thoroughly checked the Plaintiff’s records concerning the debt, and considered their own past determination that the debt was fraudulently incurred by someone other than the Defendant.

CONCLUSION 3

The evidence on file shows that Defendant worked with Plaintiff in good-faith and believed the matter solved in 2005 only to have Plaintiff file suit against her more than two years later. Having met the requirements of both O.C.G.A. §§ 9-15-14 (a) and (b), and having timely filed Motion for Attorneys Fees according to O.C.G.A. § 9-15-14(e), this Court concludes that the attorney fees were both reasonable and necessary for the reasons stated above.

IT IS HEREBY ORDERED that Defendant’s Motion for Attorney Fees is GRANTED against the Plaintiff in the amount of Eight Hundred Fifty Dollars ($850.00), this _____ day of ___________, 2009.

___________________________________________ JUDGE STATE COURT OF CHEROKEE COUNTY

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