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Tagged Opinion

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

IN RE:

CASE NO.: 21-18807-LMI

JEFFREY ALLEN SNYDER 

and NOILYN SARAY SNYDER,

Chapter 13

Debtors.

____________________________________/

ORDER DENYING DEBTORS’ REQUEST FOR FEES

This matter came before the Court for hearing on October 12, 2021 (the 

“Hearing”) on Debtors’ request for fees incurred by virtue of the filing by LVNV 

Funding, LLC and Resurgent Capital Services (collectively the “Creditor”) of a 

time-barred claim. The Debtors claim they are entitled to fees pursuant to Fla. 

Stat. §57.105. Because the Debtors have failed to cite to any support for a fee 

award under section 57.105(1) and because section 57.105(7) is not applicable, 

the request for fees is DENIED.

Laurel M. Isicoff

Chief United States Bankruptcy Judge

___________________________________________________________________________

ORDERED in the Southern District of Florida on November 15, 2021.

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The Debtors, Jeffrey and Noilyn Snyder (the “Debtors”) filed this chapter 

13 bankruptcy case on September 10, 2021. The Creditor filed a proof of claim 

in the amount of $952.12, listing an undifferentiated debt that was due in 2003 

(the “POC”). The Debtors filed an objection to the POC (ECF #20) (the “Objection”) 

pointing out that the underlying debt was time barred, and “in response to 

creditor’s filing of an incorrect and/or improper proof of claim” requested 

attorney’s fees and costs “pursuant to Florida Statute, Section 57.105.” The 

Creditor filed a response (ECF #39), acknowledging the POC would be 

withdrawn0F

1 but objecting to the request for fees and costs under either section 

57.105(1) or section 57.105(7).1F

2

Fla. Stat. §57.105(1)2F

3 is somewhat equivalent to Fed. R. Bankr. P. 9011.

See Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA 2003) (stating that 

section 57.105 was modeled upon Federal Rule of Civil Procedure 11). 

Bankruptcy Rule 9011 is substantially identical to Federal Rule of Civil 

1 Ultimately the Court entered an order sustaining the Objection and reserved jurisdiction on the 

fee issue. Order Sustaining Debtors’ Objection to Claim No. 1 Filed By LVNV Funding, LLC (ECF 

#50).

2 At the Hearing, Debtors’ counsel clarified that he was relying solely on section 57.105(7) for an 

award of fees.

3 Section 57.105(1) provides:

Upon the court’s initiative or motion of any party, the court shall award a 

reasonable attorney’s fee, including prejudgment interest, to be paid to the 

prevailing party in equal amounts by the losing party and the losing party’s 

attorney on any claim or defense at any time during a civil proceeding or action 

in which the court finds that the losing party or the losing party’s attorney knew 

or should have known that a claim or defense when initially presented to the court 

or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or 

defense; or

(b) Would not be supported by the application of then-existing law to those 

material facts.

Fla. Stat. §57.105(1).

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Procedure 11. It is designed to deter, and sanction, frivolous claims. See Lopez 

v. Hall, 233 So. 3d 451, 453 (Fla. 2018). In the Objection, Debtors asserted the 

claim was improper because it was time-barred. In the case of Midland Funding, 

LLC v. Johnson, 137 S. Ct. 1407 (2017), the Supreme Court held that the filing 

of a time-barred proof of claim in a chapter 13 case is not a violation of the Fair 

Debt Collection Practices Act (“FDCPA”).3F

4 In so holding, the Supreme Court 

noted, as an initial matter, that, claims are “a right to payment”, that “a right to 

payment” is determined generally by state law, and that, under Alabama state 

law “a creditor has the right to payment of a debt even after the limitations period 

has expired.” While this certainly leaves open the issue of an FDCPA violation if 

a creditor is prohibited under applicable state law from filing a time barred claim, 

the Debtors did not cite to any Florida law that prohibits a creditor from seeking 

payment of a time barred claim (in most instances the statute of limitations is 

an affirmative defense which, if not raised, is waived). Nor could the Court find 

any statute or case that holds that Florida law has such an absolute prohibition, 

even in the case of collecting a consumer debt.

Fla. Stat. §57.105(7) is a fee shifting statute. It provides that “[i]f 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.” However, the Debtors 

4 This judge believes Midland Funding was wrongly decided and agrees with Justice Sotomayor’s 

dissent. However, this judge’s opinion, when it conflicts with the Supreme Court, is irrelevant.

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have not identified any contract that gives either party the right to claim attorney 

fees. Consequently, section 57.105(7) cannot apply. See Levy v. Levy, 2021 WL 

4614308 (Fla. 2021) holding that section 57.105(7) must be strictly construed in 

accordance with its unambiguous language. Because the Debtors cannot 

identify a unilateral contractual provision that would entitle the Creditor to 

attorney fees, the Debtors are not entitled to seek fees under that statute. See 

In re Lillian May Francis (Case No. 21-18848-SMG, at ECF #37).

Because the Debtors have not been able to identify any basis upon which 

they are entitled to seek attorney fees, the Debtors’ request is DENIED.

# # #

Copies furnished to:

Michael A. Frank, Esq.

Gary J. Lublin, Esq.

Attorney Lublin is directed to serve a copy of this Order on interested parties 

who do not receive service by CM/ECF, and file a proof of such service within two 

(2) business days from entry of the Order.

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