Law Clerk
In Engelin v. Portfolio Recovery Associates, 50 Fla. L. Weekly D1722 (Fla. 2d DCA 2025), the Second District Court of Appeal held that a party waives a choice-of-law defense if it isn’t raised early enough, even if that foreign law would have been dispositive.
The underlying case was a standard collection suit: Portfolio Recovery filed an account-stated action to recover a credit card balance initially owed to Capital One. Importantly, they did not pursue this pursuant to the credit card agreement, which included a clause that would have allowed Portfolio to recover attorney’s fees and another provision which stated the agreement was governed by Virginia law. The defendant, Engelin, asserted entitlement to prevailing-party attorney’s fees under Section 57.105(7), Florida Statutes, which makes one-sided fee provisions, such as the one at play in this case, reciprocal.
Portfolio resisted, arguing the complaint wasn’t based on the credit agreement — and therefore, the fee-shifting statute didn’t apply. They never claimed Virginia law governed the agreement (as it apparently did under the contract’s choice-of-law clause), and they never raised this argument in their answer or at trial.
Only after voluntarily dismissing the case and the entry of judgment on Engelin’s counterclaim — and after Engelin moved for attorney’s fees — did Portfolio argue that Virginia law doesn’t recognize reciprocal fee-shifting and that Florida’s statute shouldn’t apply.
The Second DCA disagreed. The court held that:
- Choice-of-law arguments must be raised early, or they’re waived.
- If no foreign law is pled, the court will apply the forum’s law by default.
- Florida’s Section 57.105(7) is the default unless the parties timely assert otherwise.
The appellate court emphasized that even dispositive foreign law can be ignored if not raised properly. It also noted that Portfolio’s own framing of the case — denying the contract was even relevant — worked against them.
Takeaway: If your client’s position depends on foreign law, raise it early and clearly. Florida courts presume their own law applies unless otherwise pled, and waiting until after judgment to make your choice-of-law argument is too late.
At Boatman Ricci, we understand both the substance and the timing of procedural defenses.
Need help navigating choice-of-law strategies or preserving fee claims? Contact our team to avoid costly waivers
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