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 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 as 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).
Ralph T. Wutscher
Maurice Wutscher LLP
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