ASSET ACCEPTANCE, LLC v. SMITH

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ASSET ACCEPTANCE, LLC v. SMITH
2010 OK CIV APP 26
229 P.3d 1287
Case Number: 106957
Decided: 02/12/2010
Mandate Issued: 03/12/2010
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

ASSET ACCEPTANCE, LLC, Plaintiff/Appellant,
v.
JENA M. SMITH, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY, OKLAHOMA

HONORABLE JOE B. REEVES, TRIAL JUDGE

REVERSED

William L. Nixon Jr., LOVE, BEAL & NIXON, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant,
John C. Cramer, CRAMER LAW FIRM, Lawton, Oklahoma, for Defendant/Appellee.

Wm. C. Hetherington, Jr., Judge:

¶1 Asset Acceptance ("Asset") appeals the trial court order granting Appellee Jena M. Smith's ("Smith") request for prevailing party attorney fees. We find attorney fees are not recoverable here and reverse the decision.

¶2 Asset is a collection agency and assignee of Washington Mutual Bank, the Visa credit card issuing bank. The attorney fee award came from a petition filed by Asset to collect indebtedness on a credit card. Smith filed a pro se answer raising the affirmative defense that the debt had been satisfied by a lump sum settlement and payment of $4,000.00 to the original creditor, Visa.

¶3 According to the parties, Asset presented a motion for summary judgment when Smith failed to respond to requests for admissions. On March 20, 2008, the trial court denied Asset's motion based on its failure to sign the discovery requests, setting hearing, and ordering Smith to respond by April 25, 2008. Counsel for Smith entered an appearance, timely responded to Asset's discovery, and requested leave to file an amended answer out of time. The request was granted, and she filed her amended answer May 23, 2008.

¶4 On July 11, 2008, Asset dismissed its petition. Smith thereafter filed her motion for attorneys fees and an amendment to the motion. Hearing was held on November 20, 2008. The parties stipulated to the amount of $1,409.00, briefed the issue, and the order below, out of which this appeal arises, was granted January 15, 2009.