United States District Court, M.D. Florida, Orlando Division
DEBORAH L. GALLAHER and KEVIN JOHN GALLAHER, Plaintiffs,
DEUTSCHE BANK NATIONAL TRUST COMPANY, ESTATES AT ALOMA WOODS HOMEOWNERS ASSOCIATION, INC, SHELLPOINT MORTGAGE SERVICING and SELECT PORTFOLIO SERVICING INC., Defendants.
B. SMITH United States Magistrate Judge
matter comes before the Court on the Renewed Motion for Fla.
Stat. § 57.105 Attorneys Fees and Motion for Prevailing
Party Attorneys Fees Under Fla. Stat. § 559.77(2), filed
by Defendant Estates at Aloma Woods Homeowners Association,
Inc. (Doc. 30).
Deborah and Kevin Gallagher's claims concern a
residential property once owned by Mr. Gallagher sold at
foreclosure sale on March 23, 2017 (Doc. 2; Doc. 14 at 25).
Plaintiffs' objections to the foreclosure sale were
overruled by the state trial court and Plaintiffs appealed to
Florida's Fifth District Court of Appeal (Id.,
14, 27). The appellate court dismissed the appeal on November
29, 2017 (Id., at 32). Because the property is
subject to the Declaration of Conditions, Covenants,
Easements and Restrictions at Aloma Woods, it is within the
purview of Defendant Estates of Aloma Woods Homeowners
Association, Inc. (the “HOA”) (Id., at
4, 36). The HOA asserts claims against Plaintiff Keven J.
Gallagher for the non-payment of assessments, legal fees and
other expenses (Id., at 4-7).
complaint, originally filed in the Circuit Court in and for
Seminole County, Florida includes claims of negligence,
unjust enrichment, violation of the Real Estate Settlement
Procedures Act (“RESPA”), 12 U.S.C. §
2605(k), and the Florida Consumer Collection Practices Act,
Fla. Stat. §§ 595.55-559.785 for (Doc. 2). While
the case was pending in state court, the HOA filed in a
single paper, its answer, affirmative defenses, motion to
dismiss, and motion for attorney's fees (Doc. 3).
Deutsche Bank National Trust Company, Shellpoint Mortgage
Servicing and Select Portfolio Servicing, Inc. subsequently
removed the case to this Court, asserting that under 28
U.S.C. § 1331, the Court has original jurisdiction over
Plaintiffs' RESPA claim (Doc. 1 at 2-3). These Defendants
have asked the Court to exercise supplemental jurisdiction
over Plaintiffs' state law claims (Id., at 4).
Court reviewed the docket and denied the HOA's motions to
dismiss and for attorney's fees without prejudice, and
struck its answer and affirmative defenses because they were
improperly combined in a single paper (Doc. 11 at 2). On
January 31, 2018, the HOA refiled its answer, affirmative
defenses and counterclaim against Plaintiffs (Doc. 14). It
also moved to recover its attorney's fees from
Plaintiffs' attorney, Andrea Roebuck, under Fla. Stat.
§ 57.105 (Doc. 15). The Court denied the HOA's
motion for fees without prejudice because it did not comply
with Local Rule 3.01(g) (Doc. 16).
February 6, 2018, attorney Kelley A. Bosecker made her
appearance as co-counsel for Plaintiffs (Docs. 18, 20). On
February 19, 2018, Ms. Bosecker filed Plaintiffs' Notice
of Dropping Party Defendant (Doc. 25). According to the
notice, Plaintiffs were dropping the HOA pursuant to
Fed.R.Civ.P. 41(a)(1)(A)(ii) (Id.). The Court
construed the notice as a motion and the HOA filed its
response (Doc. 36). Plaintiffs later withdrew the motion
(Doc. 39). On February 27, 2018, the HOA motioned the Court
for the entry of default against Plaintiffs, for failing to
respond to its counterclaim (Doc. 29). The motion was granted
and clerk's default was entered against Plaintiffs (Docs.
31, 33). The HOA renewed its motion for an award of
attorney's fees from Ms. Roebuck that same day (Doc. 30).
Plaintiffs and Ms. Roebuck have responded to the motion (Doc.
57.105 of the Florida Statutes provides a statutory basis for
a prevailing party to recover reasonable attorney's fees
from a losing party and its attorney, in equal amounts, as a
sanction for raising unsupported claims or defenses. The
statute is triggered when “the losing party or the
losing party's attorney knew or should have known that a
claim or defense when initially presented to the court ...
(a) [w]as not supported by the material facts necessary to
establish the claim or defense, or (b) [w]ould not be
supported by the application of then-existing law to those
material facts.” Fla. Stat. § 57.105(1)(a)-(b).
Sanctions are not appropriate where the Court finds that the
claim or defense presented was “a good faith argument
for the extension, modification, or reversal of existing law
or the establishment of new law, ” or [if claimed
against the losing party's attorney] that the losing
party's attorney “has acted in good faith, based on
the representations of his or her client as to the existence
of those material facts.” Id. at §
(3)(a)-(b); see Schwartz v. Millon Air, Inc., 341
F.3d 1220, 1227 (11th Cir. 2003).
559.77(2) of the Florida Statutes enables a prevailing debtor
to recover reasonable attorney's fees from any person
found to violate the statute's provision on consumer
collection practices. See Fla. Stat. § 559.72.
Even if a debtor was the prevailing party, fees are not
awarded automatically, however. Herrera v. Bank of Am.,
N.A., 2016 WL 4542105, at *13 (S.D. Fla. Aug. 31, 2016)
(““Federal courts have held that not all
communications between a debt collector and a debtor are
covered by the statutes, and communications which are
informational in nature are outside the application of the
debt collection statutes.”).
both statutes, the party seeking fees must first establish
that it is the prevailing party. “[Prevailing
party” is defined as the litigant in whose favor a
judgment is rendered. Harty v. Ross Dress for Less,
Inc., No. 6:11-cv-351-Orl-31GJK, 2012 WL 28807, at *1
(M.D. Fla. Jan. 5, 2012); Easterling v. City of
Orlando, No. 6:05-cv-855-ORl-22GJK, 2008 WL 3889612, at
9 (M.D. Fla. Aug. 20, 2008) (citing Head v. Medford,
62 F.3d 351, 354 (11th Cir. 1995)). Courts have recognized
litigants as the “prevailing party” if they have
“receive[d] at least some relief on the merits of a
claim” Kirby v. Appliance Direct, Inc., No.
6:07-cv-1703-Orl-18GJK, 2009 WL 2905905, at *3 (M.D. Fla.
Aug. 17, 2009); Loos v. Club Paris, LLC, 731
F.Supp.2d 1324, 1329 (M.D. Fla. 2010); Lipscher v. LRP
Publications, Inc., 266 F.3d 1305, 1321 (11th Cir.
date, no judgment has been entered in favor of the HOA.
Therefore, the HOA's motion for attorney's fees is