Bank of New York Mellon Trust Co. v. Fitzgerald
215 So. 3d 116
| Fla. Dist. Ct. App. | 2017Background
- Fitzgerald executed a 2007 mortgage and promissory note payable to Northstar; the mortgage included a lender-favored attorney’s-fees clause.
- The note contained a special indorsement payable to JPMorgan Chase "its successors and/or assigns without recourse."
- The Bank of New York Mellon (the Bank) sued in 2009 to foreclose, alleging it was holder or entitled to enforce the note and mortgage.
- At a non-jury trial the court found the Bank lacked standing: no assignment or delivery to the Bank was proven and the Bank was neither holder nor non-holder in possession with holder rights. Judgment for Fitzgerald was entered.
- Fitzgerald moved for attorney’s fees under the mortgage’s fee clause and Florida Statute § 57.105(7) (reciprocity for contract fee provisions); the trial court awarded fees and costs to Fitzgerald.
- On appeal the court reversed the fee award, holding § 57.105(7) does not authorize fees where no contract exists between the parties (because the Bank lacked standing to enforce the contract).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fitzgerald may recover fees under § 57.105(7) after prevailing on the ground the Bank lacked standing to enforce the mortgage | Fitzgerald contended she was the prevailing party on the contract dispute and thus entitled to reciprocal fees under the mortgage and § 57.105(7) | The Bank argued Fitzgerald cannot invoke the contract’s fee reciprocity because the Bank was not a party to (or assignee under) the mortgage/note, so no contract exists between them | Held: § 57.105(7) does not apply because the trial court found no contract between the parties; reciprocal fees require an underlying contractual relationship |
| Whether a party who proves the plaintiff was not a party or assignee to the contract can invoke § 57.105(7) | Fitzgerald argued prevailing on lack of standing still makes her the contractual "other party" entitled to reciprocal fees | The Bank argued that finding of no assignment means no contractual relationship, so reciprocity cannot be invoked | Held: A successful defense establishing that no contract exists forecloses recovery under § 57.105(7); reciprocity requires party status to the contract |
Key Cases Cited
- Florida Cmty. Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016) (§ 57.105(7) construed strictly; reciprocity transforms unilateral fee clauses)
- HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114 (Fla. 5th DCA 2016) (no fee award where defendant proved assignee status never existed; no contract, no § 57.105(7) relief)
- Fielder v. Weinstein Design Group, Inc., 842 So. 2d 879 (Fla. 4th DCA 2003) (non-party to contract cannot recover prevailing-party fees under contract or have fees assessed against them)
- Florida Med. Ctr., Inc. v. McCoy, 657 So. 2d 1248 (Fla. 4th DCA 1995) (no basis to invoke compelled mutuality provision where defendant did not incur contract obligations)
- Attorney’s Title Ins. Fund, Inc. v. Landa-Posada, 984 So. 2d 641 (Fla. 3d DCA 2008) (attorney’s-fees awards based on contractual or statutory authorization; review de novo)