COURT OF APPEALS DECISION DATED AND FILED May 28, 2008
David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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NCO Portfolio Management, Inc.,
Plaintiff-Respondent, v. Myron O. Crane,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Myron Crane appeals an order granting NCO Portfolio Management, Inc.’s motion for relief from an order awarding attorney fees.[1] Crane argues the circuit court erred by vacating the attorney fee award when the underlying judgment forming the basis for that award remains in effect. We agree and, therefore, reverse the order vacating the attorney fee award.
Background
¶2 NCO purchased Crane’s overdue credit card account and, in January 2005, brought an action to collect the amount due on it. Crane filed a motion to dismiss on grounds that NCO had failed to state a claim upon which relief could be granted. Specifically, Crane argued that NCO failed to comply with the pleading requirements of the Wisconsin Consumer Act. See Wis. Stat. § 425.109. NCO countered that as an assignee, it was not a “creditor” within the meaning of the WCA and, therefore, not subject to the WCA’s pleading requirements. In August 2005, the circuit court rejected NCO’s arguments and granted Crane’s motion to dismiss. The court directed Crane to submit an affidavit asserting applicable fees and costs for its consideration of the appropriate attorney fee award pursuant to Wis. Stat. § 425.308. In June 2006, the circuit court entered a judgment awarding $2,734.97 in attorney fees and costs to Crane.
¶3 At the time the attorney fee award was entered, the case of Rsidue,
LLC v. Michaud, 2006 WI App 164, 295
Discussion
¶4 Crane argues the circuit court erred by granting NCO’s motion
for Wis. Stat. § 806.07
relief from judgment. On appeal, we
review a circuit court’s order granting or denying a motion for relief under Wis. Stat. § 806.07 for an
erroneous exercise of discretion. See Lenticular
¶5
¶6 Here, the circuit court granted relief from the attorney fee award, noting that “the issue is now settled law and obviously favors the position of [NCO] in this case as to the non-applicability, under the current law, of the Wisconsin Consumer Protection Act.” The court acknowledged, however, that NCO had not sought relief from the court’s “judgment on the merits.” Crane, therefore, argues that the circuit court erred by vacating the attorney fee award when the underlying judgment forming the basis for that award remains in effect. We agree.
¶7 Citing Schwochert v. American Family Mutual Insurance
Co., 172
By the Court.—Order reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.