Van Ness Attorneys

VAN NESS PREVAILS: NO STANDING, NO FEES

The Second District Court of Appeal affirmed Van Ness Law Firm’s client on the issue of contractual entitlement to attorney’s fees in a no standing, no fees appeal. In Florida, a party is only entitled to attorney’s fees if those fees are provided for in a statute, rule, or contract. There is no statute or rule providing for fees in foreclosure cases. Therefore, the parties rely on the note and mortgage. But if the note and mortgage are not between the parties, there is a question as to whether there is an entitlement to fees.

The Second District Court of Appeal had not opined on whether a borrower would be entitled to fees in the event that they prevailed in a foreclosure action by demonstrating that the bank failed to prove that either the note or mortgage were in favor of the bank. However, the Second District has now answered the question.

In Hopson v. Deutsche Bank Nat’l Trust Co., No. 2D18-0673 (Fla. 2d DCA Aug. 28, 2019), the borrower prevailed at trial. The note had no endorsements. The bank relied on an assignment of mortgage. The borrower attacked the assignment of mortgage. The trial court agreed with the borrower that the assignment of mortgage could not confer standing upon the bank. And the trial court awarded attorney’s fees to the borrower.

Van Ness moved for rehearing on the attorney’s fees issue, claiming that the lack of endorsements on the note combined with the fact that the assignment of mortgage had been impugned rendered the borrower devoid of an avenue to claim a contractual entitlement to attorney’s fees. The borrower appealed. The Second District, agreeing with the bank’s position, explained, “Because Hopson could not establish that Deutsche Bank was a party to the mortgage containing the fees provision on which Hopson relied, we affirm the trial court’s order denying Hopson attorney’s fees pursuant to section 57.105(7).”

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