BLYTH v. OCWEN LOAN SERVICING LLC (2021)

District Court of Appeal of Florida, Fourth District.2021-08-18No. No. 4D20-537

Summary · law.co

Holding. The court reversed and remanded the trial court's order denying appellants' entitlement to prevailing party attorneys fees, holding that appellants satisfied the statutory requirements for an award under Florida Statutes section 57.105(7).

Appellants defended against a foreclosure action brought by a loan servicer and won on the grounds that the servicer lacked standing to foreclose because it had not been properly assigned the promissory note. After prevailing, the appellants sought to recover their attorneys fees as the prevailing party. The trial court denied their request, but the appellate court reversed, finding that the appellants qualified for a fee award under Florida's reciprocal attorneys fee statute.

The court determined that two requirements for a fee award were satisfied. First, both the mortgage and note at issue contained provisions allowing for attorneys fees to the prevailing party in an enforcement action. Second, the parties were not strangers to the contract because the servicer itself had sued to enforce both the note and mortgage, representing in its complaint that it held and was entitled to enforce the note. The servicer therefore could not credibly claim it had no connection to these instruments. Even assuming the servicer had never been assigned the note, the appellants would still qualify for fees based on the attorneys fee clause in the mortgage alone.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a prevailing defendant in a foreclosure action may recover attorneys fees when the plaintiff lacks standing
Interpretation of Florida's reciprocal attorneys fee statute and its requirement that parties not be strangers to a contract
Whether a loan servicer that sues to enforce a note and mortgage can disclaim responsibility for enforcing those instruments

Procedural posture

Appellants appealed the trial court's denial of their motion for attorneys fees after successfully defending a foreclosure action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Appellants challenge the trial courts order denying their entitlement to attorneys fees after they prevailed in appellees foreclosure action against them on the grounds that appellee did not have standing to foreclose under the mortgage and note. We reverse on the authority of Page v. Deutsche Bank Trust Co. Americas, 308 So. 3d 953 (Fla. 2020).

In Page, the court construed section 57.105(7), Florida Statutes (2019), which allows for a reciprocal award of prevailing party attorneys fees. The statute requires in the first clause “the existence of ‘a contract [that] contains a provision allowing attorneys fees to a party when he or she is required to take any action to enforce the contract.’ ” Id. at 959 (citing § 57.105(7), Fla. Stat.). And “the statutory language [of section 57.105(7)] also requires that the plaintiff and defendant not be strangers to the contract.” Id. The statute requires in the second clause that the party must prevail. Id.

Here, the mortgage and note upon which appellee filed suit to foreclose contained an attorneys fees provision. Appellants prevailed in the action when appellee, who obtained its position by assignment, failed to prove standing.

Moreover, the parties in this case are not strangers to the contract. While appellee claims that it was not a party to the note, because it was never assigned the note, it sued on both the note and mortgage and represented in its complaint that it was entitled to enforce the note and held the note. It also sought to establish a lost note, stating that it had acquired the note. Both the note and mortgage contained an attorneys fee provision. Even if appellee had not been assigned the note, appellants would still be entitled to fees under section 57.105(7), because of the fee provision in the mortgage. See Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017), and Harris v. Bank of N.Y. Mellon, 311 So. 3d 66 (Fla. 2d DCA 2018), approved in Page, 308 So. 3d at 961. Pursuant to Page, appellants are entitled to their prevailing party attorneys fees.

Reversed and remanded for further proceedings.

Per Curiam.

Conner, C.J., Warner and Gross, JJ., concur.