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Anfriany v. Deutsche Bank National Trust Company

Florida Court of Appeals, Fourth District

December 6, 2017

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, In Trust for the Registered Holders of Argent Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2005-W4, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Petition for writ of certiorari being treated as a final appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Peter D. Blanc, Judge; L.T. Case No. 50-2008-CA-022070.

          Brian K. Korte and Scott J. Wortman of Korte & Wortman, P.A., West Palm Beach, for appellants.

          Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, and C. Wade Bowden and Tyrone Adras of Greenberg Traurig, P.A., West Palm Beach, for appellee.

          Conner, J.

         The appellants (collectively "Anfriany") petitioned for certiorari to review the trial court's order vacating their entitlement to attorney's fees and costs in the underlying foreclosure action initiated by the appellee, Deutsche Bank National Trust ("the Bank"). This Court ordered that the case be treated as a final appeal pursuant to Florida Rules of Appellate Procedure 9.110 and 9.030(b)(1)(A).

         Anfriany raises substantive issues regarding the application of judicial estoppel to bar his entitlement to fees and costs, and a procedural issue. Because the trial court applied the wrong standard in dismissing the entitlement based on judicial estoppel, we reverse and remand for further proceedings. We do not address the procedural issue raised.


         The Bank filed the underlying foreclosure action against Anfriany and others in 2008. The trial court granted the Bank's voluntary dismissal without prejudice. In May 2011, Anfriany, through foreclosure counsel, moved to tax attorney's fees and costs. In May 2012, the trial court granted the motion and ordered that Anfriany was entitled to reasonable attorney's fees and costs ("the fee entitlement order"), and if the parties could not agree on the amount, Anfriany would set the matter for an evidentiary hearing.

         In May 2013, Anfriany filed a Chapter 11 voluntary bankruptcy petition, represented by separate bankruptcy counsel. The petition included bankruptcy schedules and a statement of financial affairs, which required Anfriany to disclose and list the value of "all personal property of the debtor of whatever kind, " including "contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims." Anfriany did not list any assets in the contingent claims category. When Anfriany amended his personal property schedule later that year, he again did not list such assets. In 2014, the bankruptcy court confirmed Anfriany's reorganization plan based on his affidavits and disclosures. Subsequently, the bankruptcy court granted Anfriany's motion to temporarily and administratively close the case. Because it was a Chapter 11 bankruptcy, Anfriany's debts were not discharged under the approved reorganization plan.

         In October 2015, Anfriany requested the trial court in the foreclosure action to hold an evidentiary hearing on his motion for attorney's fees and costs. The purpose of the hearing was "to determine the reasonable amount of attorney's fees and costs."

         In September 2016, the Bank moved to vacate the fee entitlement order. In the motion, the Bank asserted that Anfriany's claim for attorney's fees was barred by judicial estoppel because Anfriany failed to disclose in his bankruptcy case his award of entitlement to attorney's fees and costs, which was a contingent and unliquidated asset. The Bank argued that Anfriany therefore misled "the bankruptcy court and creditors to believe that he had fewer assets from which he could pay his creditors." Thus, because Anfriany was taking inconsistent positions before the bankruptcy and foreclosure courts, the Bank asserted that judicial estoppel should bar his recovery.

         In his written response to the motion, Anfriany argued that judicial estoppel did not bar his claim for fees and costs. Anfriany asserted that, because a Chapter 11 bankruptcy petition does not discharge his debts, he did not deprive any creditors of their rights to collect amounts owed; thus, no parties were prejudiced by his omission. Additionally, Anfriany argued that he himself was unaware that attorney's fees are legally classified as an "asset" and his ...

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