The Mississippi Court of Appeals issued an opinion affirming sanctions and fees earlier this week against a collection attorney and the creditor in MONAGHAN v. AUTRY, NO. 2015-CA-01772-COA
The collection complaint was served on a “Robert Autry, Jr.” in Kosciusko, MS. However, it was determined that this was the wrong “Robert Autry” and that the correct Autry lived in Walls, MS. The creditor recognized this mistake and moved to dismiss the lawsuit. However, the Kosciusko Autry retained a lawyer who in addition to seeking a dismissal, sought sanctions and reimbursement of attorney’s fees expended in having to defend the suit.
The Court of Appeals affirmed the award of sanctions against the attorney and creditor. Section 11-55-5(2) states, “No attorney’s fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim[,] or defense within a reasonable time after the attorney or party filing the action, claim[,] or defense knows or reasonably should have known that it would not prevail on the action, claim[,] or defense.”
Of course, this section accepts that mistakes happen and there shouldn’t be repercussions for honest mistakes that are corrected in a reasonable time. However, evidence was uncovered that before the suit was filed, Autry, Jr. advised the creditor’s attorney that he was the wrong one, and provided his social security number, and despite being assured that he would correct the problem, the attorney moved forward with the suit against the wrong Autry.
As a result, the Court awarded and the Mississippi Court of Appeals affirmed the sanctions against both the creditor and the attorney.