234 So.3d 833
Fla. Dist. Ct. App.2018Background
- Borrowers Adren and Uraiwan Bird were party to foreclosure litigation in which Wells Fargo sought relief based on a mortgage.
- It was undisputed at trial that the Birds’ signatures on the mortgage were forged.
- Because of the forgery, the trial court found the mortgage void for the purpose of the dispute yet nonetheless awarded the Birds contractual attorney’s fees under paragraph 22 of the mortgage and under the reciprocity provision of section 57.105(7), Florida Statutes.
- The Birds also sought recovery of expert witness costs tied to their claimed entitlement to contractual fees.
- Wells Fargo appealed the attorney’s fees and expert-costs award.
- The Fifth District reviewed entitlement to fees de novo where the issue depends on interpretation of a contract or statute.
Issues
| Issue | Plaintiff's Argument (Bird) | Defendant's Argument (Wells Fargo) | Held |
|---|---|---|---|
| Whether Borrowers could recover contractual attorney’s fees under the mortgage clause when the mortgage was forged | The Birds prevailed in the litigation and thus should recover contractual fees under paragraph 22 and reciprocity under section 57.105(7) | A forged mortgage is void, so no valid contract exists and no contractual fee provision can be enforced | Court held fees could not be awarded because the mortgage was void and contained no enforceable fee provision |
| Whether Birds could recover expert witness costs tied to their claimed contractual fee entitlement | Expert costs are recoverable as incident to the fee award | Expert costs are not recoverable if there is no entitlement to contractual fees | Court held expert witness costs not recoverable without an underlying contractual-fee entitlement |
Key Cases Cited
- M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 975 So. 2d 1288 (Fla. 4th DCA 2008) (contractual attorney’s fees enforced absent compelling circumstances)
- Jamnadas v. Singh, 731 So. 2d 69 (Fla. 5th DCA 1999) (a forged mortgage is void)
- Bank of N. Y. Mellon v. Mestre, 159 So. 3d 953 (Fla. 5th DCA 2015) (attorney’s fees cannot be awarded under clause in a void mortgage)
- Fla. Cmty. Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016) (fee reciprocity requires party to be party to contract containing fee provision)
- Novastar Mortg., Inc. v. Strassburger, 855 So. 2d 130 (Fla. 4th DCA 2003) (same principle on reciprocity and party status)
- Marty v. Bainter, 727 So. 2d 1124 (Fla. 1st DCA 1999) (expert costs tied to fee entitlement are not recoverable absent entitlement)