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Radosevich v. The Bank of New York Mellon

Florida Court of Appeals, Third District

April 4, 2018

Katherine Radosevich, Appellant,
v.
The Bank of New York Mellon, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo, Judge.

          Legal Save, and Jeffrey H. Papell, for appellant.

          McGlinchey Stafford, PLLC, and Karin L. Posser, N. Mark New, II and William L. Grimsley (Jacksonville), for appellee.

          Before EMAS, FERNANDEZ and LUCK, JJ.

          EMAS, J.

         INTRODUCTION

         Katherine Radosevich appeals from the trial court's order denying her motion for trial-level attorney's fees as the "prevailing party" in the mortgage foreclosure action below. For the reasons that follow, we reverse and remand for the trial court to conduct a further hearing, as may be appropriate, to determine whether Radosevich remains entitled to an award of attorney's fees as the prevailing party.

         FACTS AND BACKGROUND

         On June 25, 2009, the Bank of New York Mellon, etc. ("BONY") filed a two-count complaint against Radosevich, seeking (1) to foreclose on a note and mortgage; and (2) to reclaim a lost note. Attached to the complaint was a copy of a unendorsed note, naming Countrywide Home Loans, Inc. as the lender. More than a year after the complaint was filed, BONY filed another copy of the original note, which this time contained an undated blank endorsement, along with an assignment dated July 21, 2009, but with an effective date of May 19, 2009.

         The case proceeded to non-jury trial on May 7, 2013. The court denied BONY's request to admit the loan payment history, based upon a determination that BONY's witness was not credible. After BONY rested its case, counsel for Radosevich[1] moved for involuntary dismissal, arguing there were discrepancies in the copy of the note filed with the complaint and the later-filed copy of the note, and that the mortgage assignment was dated after the complaint was filed. The trial court granted the motion, and entered an order of dismissal. The court later denied BONY's motion for reconsideration or new trial, and BONY appealed the dismissal order to this court (Case No. 3D13-2280).

         In the meantime, Radosevich moved for trial court attorney's fees and costs as the prevailing party, pursuant to section 57.105(7), Florida Statutes[2] and a prevailing party provision in the note and mortgage. While the appeal of the dismissal order was still pending, an agreed order was entered below on Radosevich's motion for trial court attorney's fees and costs, which stated:

1. Defendant's Amended Motion for Attorney's Fees and Costs is GRANTED as to entitlement pending the outcome of the appeal.
2. The parties are in agreement that no hearing regarding the amount of attorney's fees shall be heard until the ...

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