Nudel v. Flagstar Bank, FSB
2011 Fla. App. LEXIS 7181
| Fla. Dist. Ct. App. | 2011Background
- Flagstar Bank filed a mortgage foreclosure action against Nudel on June 30, 2009.
- MERS was the mortgagee nominee for Flagstar, and Flagstar held the lender’s rights to attorney’s fees in the foreclosure instrument.
- MERS assigned the mortgage to Flagstar on August 21, 2009.
- Nudel moved to dismiss arguing Flagstar lacked standing because MERS assignment occurred after filing; the circuit court dismissed without prejudice on March 29, 2010.
- Nudel later sought attorney’s fees under the mortgage provision and § 57.105(7); the circuit court denied fees, citing waiver under Stockman and Sardon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Nudel waive attorney’s fees entitlement? | Flagstar argues waiver via Stockman/Sardon due to no fee demand in dismissal motion. | Nudel contends no waiver because fees timely sought after dismissal per Stockman rule. | No waiver; timely post-dismissal fee motion is allowed. |
| Are fees recoverable under 57.105(7) as prevailing party? | Flagstar contends Nudel cannot recover since it was not prevailing. | Nudel contends she is prevailing and thus entitled to fees under the statute. | Nudel is a prevailing party entitled to fees. |
| Does voluntary dismissal without prejudice confer prevailing party status? | Flagstar argues no ongoing entitlement after dismissal and refile. | Nudel relies on cases holding voluntary dismissal without prejudice grants prevailing party status upon later success. | Prevailing party status awarded; voluntary dismissal without prejudice supports fee recovery. |
| Is estoppel applicable to enforce fees? | Flagstar asserts estoppel prevents applying mortgage terms to itself. | Nudel maintains both parties are bound by the mortgage language. | Estoppel rejected; mortgage terms apply to both parties. |
Key Cases Cited
- Stockman v. Downs, 573 So.2d 835 (Fla. 1991) (fee must be pled or waived in certain pleadings; supports timing rule for fee requests)
- Green v. Sun Harbor Homeowner’s Ass’n, 730 So.2d 1261 (Fla. 1998) (clarifies Stockman interpretation relating to pleadings and motions)
- Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006) (voluntary dismissal without prejudice can yield prevailing-party fees upon later refiling)
- Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla. 1990) (supports fee recovery after prevailing in later litigation)
- Bank of New York v. Williams, 979 So.2d 347 (Fla. 1st DCA 2008) (refiling after voluntary dismissal does not bar fee recovery)
- State ex rel. Marsh v. Doran, 958 So.2d 1082 (Fla. 1st DCA 2007) (supports prevailing-party fee entitlement after voluntary dismissal)