By Amy Kiser, Esquire, January 11, 2021
On December 31, 2020, the Florida Supreme Court issued an opinion holding that a unilateral attorney’s fee provision in a note and mortgage was made reciprocal to a borrower under Fla. Stat. 57.105(7) where the borrower prevailed in a foreclosure action in which the plaintiff bank established standing to enforce the note and mortgage at the time of trial but not at the time suit was filed, holding that the statutory conditions were met. Page v. Deutsche Bank Trust Company Americas, Case No. SC19-1137. https://law.justia.com/cases/florida/supreme-court/2020/sc19-1137.html.
In Page, the lower court held that the Plaintiff was able to prove standing at the time of the trial but failed to prove standing when the case was filed. The borrowers were awarded attorney fees as the prevailing party. The 4th District Court of Appeals reversed the award for attorney fees holding that if the basis for the borrower prevailing was the lack of standing for Deutsche Bank, then Page was not entitled to attorneys’ fees under a contract that did not apply.
The Supreme Court reversed the Fourth District Court of Appeals. The court provided that to prevail under Fla Stat 57.105(7) two conditions must be satisfied. The first is there must be a contact that contains a fee provision and the second is the party must prevail in an action with respect to the contract.
Here, the evidence established the contractual relationship between the parties, and the contract contains the requisite provision. Page obviously prevailed in the action, and as for the existence of the contract, the bank showed at the trial it had the right to enforce the contract even though it failed to show it had that right at the time it filed the case. As such both conditions were satisfied and Page is entitled to an award of fees.
In conclusion, if a foreclosure action is dismissed due to failure to show standing at the inception of the case, the Borrower can be awarded attorney’s fees under Fla Stat 57.105(7).