Wisconsin Court of Appeals
Consumer Protection – WCA — prevailing party — attorney fees
Where a creditor was not found to have violated the Wisconsin Consumer Act, but dismissed its complaint without prejudice, the debtor is not a prevailing party entitled to attorney fees.
“Woodard is correct in her assertion that she received a ‘significant benefit’ when the default judgment against her was opened and dismissed. See Community Credit I, 221 Wis. 2d at 774. However, unlike in Community Credit I and II, the record does not establish that Credit Acceptance violated the WCA. Although Woodard contends that Credit Acceptance violated notice requirements and that the contract with Credit Acceptance was void, the circuit court did not reach the merits of Woodard’s motion. Rather, the judgment was opened pursuant to a stipulation by the parties in which the parties specifically agreed that neither would admit liability of any sort. Therefore, the significant benefit received by Woodard in the circuit court did not result from a violation of the WCA by Credit Acceptance. See, e.g., Community Credit I, 221 Wis. 2d at 774.”
“The awards of attorney’s fees and costs is properly limited to those cases in which the creditor has not ‘fully complied with chs. 421 to 427.’ See WIS. STAT. § 425.301(1); see also Suburban State Bank v. Squires, 145 Wis. 2d 445, 450, 427 N.W.2d 393 (Ct. App. 1988). In keeping with the purposes of the WCA, Community Credit I and II are both clear that a party moving for attorney’s fees and costs under the WCA must show both a significant benefit in litigation and a violation of the WCA on the part of the non-moving party. Woodard has only met the first prong.”
Recommended for publication in the official reports.
2011AP135 Credit Acceptance Corp. v. Woodard
Dist. I, Milwaukee County, Brash, J., Kessler, J.
Attorneys: For Appellant: Crandall, Eric L., New Richmond; For Respondent: Lawless, Lisa M., Milwaukee