274 So. 3d 1116
Fla. Dist. Ct. App.2019Background
- Deutsche Bank filed a foreclosure action against Terri Page; the borrower answered claiming the note/mortgage were unenforceable and the bank lacked standing.
- The complaint’s original note lacked endorsements; amended complaints attached a note with undated endorsements; the bank argued it possessed the note when suit was filed.
- At trial the borrower moved for involuntary dismissal; the trial court found the bank lacked standing at the inception of the action (despite proof of standing at trial) and granted dismissal.
- The borrower then sought attorney’s fees under the mortgage and Fla. Stat. § 57.105(7); the trial court awarded fees and reserved amount, later entering a final fee judgment of $52,294.
- The bank argued on reconsideration and appeal that because the borrower prevailed on a lack-of-standing defense, the borrower cannot rely on the contract’s fee provision to recover fees.
- The Fourth District, en banc, reversed the fee award, holding that a borrower who prevails by showing the plaintiff lacked contractual standing at suit inception cannot recover contractual attorney’s fees under § 57.105(7).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether borrower can recover contractual attorney's fees after prevailing on lack-of-standing defense | Page: Fees allowed because a contract existed and the borrower prevailed at trial; precedent (Madl/Harris) permits fees when contract proven by trial | Deutsche Bank: Borrower prevailed by showing bank lacked right under the contract to sue at inception, so borrower cannot invoke that same contract to claim fees | Reversed: No fees. Prevailing on lack-of-standing precludes using the contract’s fee clause under § 57.105(7) |
Key Cases Cited
- Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017) (party who prevails by showing plaintiff lacked contractual right to sue cannot claim contract fees)
- Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) (holding borrower may recover fees where contract was proven at trial despite standing issues)
- Bank of New York Mellon Tr. Co. v. Fitzgerald, 215 So. 3d 116 (Fla. 3d DCA 2017) (addressing fee entitlement in foreclosure/standing context)
- Wells Fargo Bank Nat'l Ass'n v. Bird, 234 So. 3d 833 (Fla. 5th DCA 2018) (standard of review for fee entitlement based on contract/statute)
- Deutsche Bank Tr. Co. Americas v. Page, 214 So. 3d 674 (Fla. 4th DCA 2016) (prior appellate disposition related to this foreclosure action)