Cacho v. Bank of New York Mellon
124 So. 3d 943
| Fla. Dist. Ct. App. | 2013Background
- The Bank of New York Mellon filed a mortgage foreclosure action against Jaime Cacho in October 2009.
- Cacho was initially represented by the Law Offices of La Ley con John H. Ruiz, P.A.; Ruiz filed an answer raising a reciprocal attorney-fee claim under Paragraph 24 of the mortgage and § 57.105(7), Fla. Stat.
- Ruiz was permitted to withdraw as Cacho’s counsel in March 2011; Cacho remained unrepresented.
- The foreclosure action was dismissed on December 29, 2011 after the Bank failed to appear; the dismissal did not mention attorney’s fees.
- Ruiz (after withdrawal) filed a motion seeking attorney’s fees from the Bank on January 19, 2012 and later (untimely) recorded a charging lien in November 2012.
- The trial court denied Ruiz’s motion for attorneys’ fees; Ruiz appealed, arguing he could secure the fee award against the Bank as Cacho’s former counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ruiz (former counsel) may obtain attorney’s fees directly from the Bank | Ruiz argued the mortgage’s reciprocal fee provision and § 57.105(7) made Cacho a prevailing party entitled to fees and Ruiz should recover those fees from the Bank | Bank argued only the prevailing party (Cacho) could seek fees; Ruiz lacked an independent contractual or statutory right to recover from the Bank | Ruiz cannot independently seek fee recovery from the Bank; only Cacho had standing to do so |
| Whether Ruiz could file fee motion after withdrawal without appearing again for Cacho | Ruiz treated himself as filing on behalf of Cacho and sought fees despite withdrawal | Bank and court noted Ruiz had withdrawn and did not reappear or obtain substitution/consent; filings by non-appearing counsel are unauthorized | Filings by Ruiz post-withdrawal were without authority; he lacked standing to act for Cacho |
| Validity/timeliness of Ruiz’s charging lien | Ruiz later filed a charging lien to secure his fees | Bank and precedent: charging lien must be asserted and notice given before final judgment/dismissal or court loses jurisdiction to enforce it | Ruiz’s charging lien was untimely (filed after dismissal) and therefore unenforceable in the foreclosure action |
| Whether Cacho (if he had pursued) could recover fees from the Bank under § 57.105(7) and mortgage | Ruiz contended Cacho prevailed and thus was entitled to reciprocal contractual fees | Bank did not dispute the reciprocity principle; dispute centered on who could enforce it | Court acknowledged Cacho (as prevailing party) could have sought fees, but he did not; that right does not transfer to withdrawn counsel absent timely lien or direct contractual right |
Key Cases Cited
- Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010) (mortgagor in dismissed foreclosure entitled to prevailing-party fees under § 57.105(7))
- Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88 (Fla. 3d DCA 1987) (charging-lien notice is critical for withdrawn counsel to preserve rights in the original action)
- Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla. 1983) (charging lien secures attorney fees in the judgment or recovery of that suit)
- Naftzger v. Elam, 41 So.3d 944 (Fla. 2d DCA 2010) (elements to enforce charging lien; timely notice required prior to final judgment/dismissal)
- Weiland v. Weiland, 814 So.2d 1252 (Fla. 2d DCA 2002) (notice of charging lien must be filed before entry of final judgment or dismissal)
- Pasco County v. Quail Hollow Props., Inc., 693 So.2d 82 (Fla. 2d DCA 1997) (requirement that substitution/appearance follow court rules to bind parties and permit counsel to act)