Can a Defendant Recover Attorney Fees if They Win a Case
My question involves small claims court in the state of: Oregon
I'm going through an adverse possession case (I am the defendant) and, at this time, am wracking up my lawyer fees. It's life - gotta do it.
Something I have been realizing (and reading about) is that it sounds like I won't be able to recoup those lawyer fees which really will be my only cost to this case since I am not suing for an amount they owe me or anything. I'm just defending the property I own - so, I am just out lawyer fees (and other legal fees).
Are those fees that are ever rewarded back (if I win)?
Re: Can a Defendant Recover Attorney Fees if They Win a Case
As your lawyer has likely already explained to you, the standard rule in the U.S. is that each litigant pays his own attorney fees. Your lawyer can advise you about any exceptions that might apply.
Why isn't your case being defended under your title insurance?
Re: Can a Defendant Recover Attorney Fees if They Win a Case
Because the property was, when purchased, worth nil, there was no title insurance added.
When served by the Plaintiff they said that we would be paying their fees and in the answer that my attorney filed he basically said the same. So, that is wrong?
He cited this in the answer for why they should pay the fees:
http://www.oregonlaws.org/ors/20.105
Re: Can a Defendant Recover Attorney Fees if They Win a Case
How can you be racking up lawyer fees in small claims court? Did you get special permission from the court to have a lawyer in a small claim?
You MIGHT get reimbursed for legal expenses IF the court determines that the suit was frivolous or was intended to harass. But that is NOT going to happen with a small claim in which you were not even normally required or expected to have a lawyer.
Re: Can a Defendant Recover Attorney Fees if They Win a Case
Quote:
Quoting
Rigel
The key phrase in that statue is:
"that there was no objectively reasonable basis for asserting the claim"
You will first have to win the case and then PROVE, with EVIDENCE, that there was no "objectively reasonable basis." That doesn't automatically follow from just winning the case.
Once you have won the case, you have to petition the court to award you the legal fees so that's a whole nuther round of litigation that you'll have to pay your lawyer to handle for you with no guarantee of winning the fees.
"An award of attorney fees under ORS 20.105(1) is appropriate when the court has made the following findings: (1) the party to whom attorney fees are to be awarded is a prevailing party; (2) the claim, defense, or ground for appeal or review is without merit; and (3) the party taking the meritless position has done so with an improper purpose." Mattiza v. Foster, 803 P. 2d 723 - Or: Supreme Court 1990.
https://scholar.google.com/scholar_c...en&as_sdt=4,38
Not only does the plaintiff's claim have to be meritless, he must also have made the claim with an improper purpose.
That he was just wrong in his assertion of adverse possession isn't enough.
- - - Updated - - -
Quote:
Quoting
Bubba Jimmy
How can you be racking up lawyer fees in small claims court? Did you get special permission from the court to have a lawyer in a small claim?
You MIGHT get reimbursed for legal expenses IF the court determines that the suit was frivolous or was intended to harass. But that is NOT going to happen with a small claim in which you were not even normally required or expected to have a lawyer.
Actually, that could happen in small claims court. OP's entitled to a lawyer with the consent of the court. Once he feels compelled to hire one (as is his right) the award of fees then does depend on the findings under 20.105 and has nothing to do with "not even normally required or expected to have a lawyer."
Frankly, I'm wondering if the OP isn't mistaken about this being in small claims court as I don't think small claims court is the place for an adverse possession action. Perhaps the OP can clarify.
Re: Can a Defendant Recover Attorney Fees if They Win a Case
I agree, small claims only does tort claims for money up to $10,000 or recovery of personal property (of similar value). You can't bring an adverse possession suit there nor can you recover statutory legal fees.