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Fla. App. Court (4th DCA) Holds Borrower Prevailing on ‘Lack of Standing’ Cannot Obtain Attorney’s Fees

The District Court of Appeal of Florida for the Fourth District recently denied a borrower’s motion for appellate attorney’s fees in a contested foreclosure, holding that the reciprocity provision of section 57.105(7), Florida Statutes, does not apply where the borrower prevails based on lack of standing, unless the plaintiff mortgagee was also the original lender.

A copy of the opinion in Nationstar Mortgage LLC, etc. v. Marie Ann Glass, et al. is available at: Link to Opinion.

The trial court dismissed with prejudice a mortgagee’s amended foreclosure complaint, and the plaintiff mortgagee appealed.

The mortgagee voluntarily dismissed the appeal, and the borrower moved for appellate attorney’s fees and costs, arguing that she was entitled to recover her fees and costs based on a provision of the mortgage and based upon subsection 57.105, Florida Statutes, which provides that where there exists a contract with a provision for attorney’s fees and costs in favor of one party, it is deemed to be reciprocal.

On appeal, the Fourth District explained that “the plain language of section 57.105(7) has two requirements. First, the party must have prevailed. Second, the party had to be a party to the contract containing the fee provision.”

Because the borrower prevailed in the trial court based on her argument that the mortgagee lacked standing to sue, the Court found that “where a party prevails by arguing the plaintiff failed to establish that it had the right pursuant to the contract to bring the action, the party cannot simultaneously seek to take advantage of a fee provision in that same contract. The result is different when the plaintiff is also the originating lender [because] [i]n that situation, the lender was a party to the contract at issue.”

The borrower’s motion for appellate attorney’s fees and costs was denied, albeit without prejudice as to the costs because “a request for costs is not properly presented to the appellate court” pursuant to Florida Rule of Appellate Procedure 9.400(a).

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Hector Lora has substantial experience in all phases of complex commercial litigation, including motion practice, written discovery, depositions, mediations, bench and jury trials, and appellate practice. For more than a decade, his practice has focused extensively on the defense of civil enforcement actions filed by the FTC, as well as real estate litigation, and contested mortgage and condominium lien foreclosures and foreclosure of security interests under UCC Article 9. Hector also has substantial experience in advising a variety of types of businesses regarding their compliance with applicable federal and state laws, including the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telemarketing Sales Rule, the Controlling the Assault of Nonsolicited Pornography and Marketing Act of 2003, and Florida laws governing telephone solicitation and communication. Hector received his Juris Doctor from the Georgetown University Law Center, and his undergraduate degree with honors from the University of Florida.

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