Bmr Funding, LLC v. Ddr Corp.
2011 Fla. App. LEXIS 11903
| Fla. Dist. Ct. App. | 2011Background
- BMR Funding, LLC appeals a final judgment awarding attorneys' fees to DDR and Dunn under §57.105 and loan documents.
- DDR and Dunn claimed entitlement to fees but did not plead them in any pleading; their Notice of Intent was not a pleading.
- Foreclosure action timeline: M&I Marshall and Ilsley Bank filed suit in 2007; M&I assigned rights to SPCP; SPCP obtained foreclosure judgment in 2008; SPCP assigned to BMR; foreclosure sale to BMR in 2008.
- Deficiency hearing scheduled for 2009; DDR and Dunn moved for fees related to deficiency proceedings and filed a Notice of Intent weeks before the final hearing.
- Trial court awarded DDR and Dunn $44,667.50 in fees for deficiency-judgment defense; on appeal, court reverses due to lack of pleading and improper notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entitlement to attorneys' fees was properly pleaded | BMR contends DDR/Dunn failed to plead fees. | DDR/Dunn argue Notice of Intent suffices for pleading. | Entitlement not pleaded; reversed. |
Key Cases Cited
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) (fees must be pleaded regardless of basis)
- Green v. Sun Harbor Homeowners' Ass'n, 730 So.2d 1261 (Fla.1998) (pleading requirement explained; failure to plead waives.)
- Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708 (Fla.4th DCA 2002) (reversed fee award for lack of pleading)
- Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So.2d 416 (Fla.5th DCA 2003) (notice purposes; waiver aspects)
- Brown v. Gardens by the Sea Condo. Ass'n, 424 So.2d 181 (Fla.4th DCA 1983) (Stockman exception cited)
- Mainlands of Tamarac by Gulf Unit No. Four Ass'n v. Morris, 388 So.2d 226 (Fla.2d DCA 1980) (waiver through lack of pleading)