Van Ness Attorneys

FORECLOSURE FEES NOT AUTOMATIC IN GLASS

Glass v. Nationstar Mortg., LLC, 2019 Fla. App. LEXIS 30; 2019 WL 98152; Case No. SC17-1387 (Fla. 2019) discusses whether a borrower who successfully defends against a foreclosure case may claim entitlement to reciprocal attorney’s fees. The opinion in Glass does not necessarily prevent a plaintiff from arguing that the borrower is not entitled to fees. 

In Glass, The borrower sought review of a district court opinion, based on alleged express and direct conflict with another district court opinion, on the point of law that a voluntary dismissal provides a basis for being considered the prevailing party for the purpose of appellate attorney’s fees.

At the trial court level, the borrower had moved to dismiss the complaint on three separate, successful occasions based on the allegation that the complaint failed to demonstrate that the plaintiff was the proper holder of the note. Eventually, the trial court dismissed the complaint with prejudice. The borrower sought attorney’s fees pursuant to rule 1.525, Florida Rules of Civil Procedure, the mortgage, and section 57.150(7), Florida Statutes. Fees were granted.

The plaintiff appealed the final judgment, arguing that none of the arguments in the motions to dismiss had merit. The plaintiff subsequently filed a notice of voluntary dismissal of the appeal and the borrower filed a renewed motion for appellate attorney’s fees based on section 57.105(7) and the voluntary dismissal. The district court of appeal denied the motion for fees. The borrower sought review in the Florida Supreme Court. The Florida Supreme Court reasoned that the voluntary dismissal rendered the borrower the prevailing party on appeal.

However, for a number of reasons, Glass does not necessarily foreclose a plaintiff from arguing that a dismissal premised on a plaintiff’s lack of standing prevents a borrower from seeking attorney’s fees. First, notably, the plaintiff in Glass did not seek review of the attorney’s fees order in the district court. Secondly, the dismissal in Glass was based on any of four alleged bases raised in the motions to dismiss. The trial court dismissed the complaint without prejudice and also without providing its reason for the dismissal. Thirdly, the Court discusses Bank of New York Mellon Trust Co. v. Fitzgerald, 215 So. 3d 116 (Fla. 3d DCA 2017), another case in which a borrower was prevented from obtaining fees where it successfully defended on the basis that there was no contract between the parties. Instead of overturning Fitzgerald, the Court distinguished it, reasoning that it was important that the Fitzgerald case had proceeded to non-jury trial at which specific findings were made as to standing.