308 So.3d 953
Fla.2020Background:
- In 2006 Page executed a note and mortgage in favor of National City Mortgage containing a unilateral attorney’s-fee provision in the lender’s favor.
- Deutsche Bank filed a foreclosure in 2009 attaching a note payable to National City (not endorsed); it later amended to attach an endorsed note and a retroactive assignment purporting to give the Bank enforcement rights.
- At trial the Bank could not prove when it became the holder of the endorsed note; the trial court granted involuntary dismissal on two independent grounds (a deficient default letter and lack of standing as of the filing date) and reserved ruling on attorney’s fees.
- After appellate disposition the trial court awarded Page fees under §57.105(7); the Fourth DCA en banc reversed, holding that a borrower who prevails on a standing defense cannot recover contract-based fees (“NO STANDING = NO ATTORNEY’S FEES”) and certified conflict with Madl and Harris.
- The Fifth DCA in Madl and the Second DCA in Harris held the opposite: if the record otherwise establishes the plaintiff later became subject to the contract’s fee provision, a prevailing borrower may recover reciprocal fees under §57.105(7).
- The Florida Supreme Court quashed the Fourth DCA in Page, approved Madl (and Harris), and held that §57.105(7)’s plain text permits reciprocal fees when (1) the contract contains the fee provision and (2) the borrower prevails in an action with respect to the contract; it rejected judicial estoppel and the Bank’s jurisdictional argument.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a unilateral lender fee provision becomes reciprocal under §57.105(7) when borrower prevails and the plaintiff established standing at trial but not at filing | If borrower prevs on a standing defense, borrower cannot invoke the contract for fees; lack of standing at filing means no enforceable contract rights then | §57.105(7) requires only that the contract contain a fee provision and the borrower prevailed in an action with respect to the contract; record shows contractual relationship | Court: §57.105(7) applies; borrower eligible for reciprocal fees; quashes Page and approves Madl/Harris |
| Whether judicial estoppel bars a borrower from seeking contract fees after arguing lack of standing | Page’s earlier position that Bank lacked standing is inconsistent with later reliance on the contract; estoppel should apply | Positions are not irreconcilable; no adjudication that the contract never existed; equities do not support estoppel | Court: Judicial estoppel inapplicable; borrower not estopped |
| Whether a trial court lacked subject-matter jurisdiction to award fees because standing is jurisdictional | Standing is a component of subject-matter jurisdiction, so court lost power once it dismissed for lack of standing | Standing is a waivable defense (not SMJ); Bank waived any jurisdictional objection by raising it late | Court: Standing is waivable and Bank waived the jurisdictional argument; trial court had authority to award fees |
Key Cases Cited:
- Nationstar Mortg. LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017) (en banc) (sets out §57.105(7) requirements and earlier Fourth DCA precedent denying fees when plaintiff failed to establish enforcement rights at filing)
- Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) (borrowers awarded reciprocal fees under §57.105(7) where record established the bank became party to contract)
- Connecticut Nat. Bank v. Germain, 503 U.S. 249 (U.S. 1992) (textualist canon: presume legislature means what it says)
- Lieupo v. Simon’s Trucking, Inc., 286 So. 3d 143 (Fla. 2019) (statutory construction reviewed de novo)
- Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061 (Fla. 2001) (discusses judicial estoppel doctrine)
- Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840 (Fla. 1993) (standing is a waivable defense)
- United States v. Cotton, 535 U.S. 625 (U.S. 2002) (subject-matter jurisdiction is not waivable)