NON-DISPOSITIVE OPINION. NO MANDATE WILL BE ISSUED AT THIS
from the Circuit Court for Brevard County, Lisa Davidson,
Bowin, of Bowin Law Group, Satellite Beach, for Appellants.
Shamir, David S. Ehrlich, and Nicole R. Topper, of Blank Rome
LLP, Fort Lauderdale, and Monika E. Siwiec, and Manuel S.
Hiraldo, of Blank Rome LLP, Boca Raton, for Appellee, Wells
Fargo Bank, N.A., As Trustee Under the Pooling and Servicing
Agreement Relating to Impac Secured Assets Corp, Mortgage
Pass Through Certificates, Series 2005-2.
A. Brainard, Scott C. Davis and Michael H. Casanover, of
Business Law Group, P.A., Tampa, for Appellee, Suntree Master
Homeowners Association, Inc.
appearance for other Appellee.
MOTIONS FOR REHEARING, CERTIFICATION OF CONFLICT, AND
Wells Fargo, filed motions for rehearing, certification of
conflict, and reconsideration, in which it argues, in part,
that we erred in granting Appellants' motion for
attorney's fees pursuant to the mortgage and section
57.105(7), Florida Statutes (2015). Because there was a
contractual relationship between the parties and Appellants
are the prevailing parties, they are entitled to
attorney's fees in accordance with the mortgage and
section 57.105(7). As discussed in more detail below, we deny
Appellee's motions concerning the award of attorney's
fees to Appellants. Appellee has also filed a motion for
rehearing en banc, which is denied by a separate order.
current Florida law, the plaintiff in a mortgage foreclosure
suit must prove that it has standing both at the time suit is
filed and at the time of trial; failure to have standing at
either time requires dismissal of the suit. See McLean v.
JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170,
173 (Fla. 4th DCA 2012). Appellee claimed to be the holder of
the note, and thus entitled to sue. However, Appellee's
proof was lacking because: (1) the copy of the note attached
to the complaint was not indorsed either in blank or to
Appellee; (2) Appellee and its counsel had been searching for
the note for a period of years that extended beyond the
initiation of this suit; and (3) the note was ultimately
delivered by Deutsche Bank, who had sued Appellants and
claimed to be the holder of the same note, to Appellee five
years after this suit was filed, but while it was still
pending. Deutsche Bank dismissed its foreclosure suit against
Appellants after Appellee had filed the underlying suit.
Based upon this remarkable combination of facts, we found
that Appellee lacked standing when it filed suit. However, it
did appear to have standing by the time of trial as a result
of Deutsche Bank's unexplained delivery of the allegedly
original note. Unlike the copy attached to the complaint, the
"original" note bore an indorsement in blank, the
timing of which was not explained.
determined that Appellee failed to prove that it or anyone
acting on its behalf provided Appellants with notice of
default and intent to accelerate, a condition precedent to
foreclose. Accordingly, because of a lack of standing and a
lack of proving compliance with a condition precedent, we
reversed the judgment in favor of Appellee and instructed the
trial court to involuntarily dismiss the case. Thus,
Appellants are prevailing parties.
mortgage had been assigned to Appellee. Like many others, the
subject mortgage provides that only the lender is entitled to
recover its litigation and appellate attorney's fees
incurred in successful collection or foreclosure actions.
See Fla. Cmty. Bank v. Red Rd. Residential, LLC, 197
So.3d 1112, 1114 (Fla. 3d DCA 2016). "[B]y operation of
law, section 57.105(7) bestows on the other party to the
contract[-the borrower-]the same entitlement to prevailing
party fees." Id. at 1115. Section 57.105(7)
transforms a unilateral right into a reciprocal right so that
all parties to the contract are entitled to recover
attorney's fees upon prevailing. HFC Collection Ctr.,
Inc. v. Alexander, 190 So.3d 1114, 1116 (Fla. 5th DCA
order to obtain prevailing party fees pursuant to section
57.105(7), the moving party must prove three requirements: 1)
the contract provides for prevailing party fees, 2) both the
movant and opponent are parties to that contract, and 3) the
movant prevailed. See Nationstar Mortg. LLC v.
Glass, 219 So.3d 896, 898 (Fla. 4th DCA 2017) (en banc);
Fla. Cmty. Bank, 197 So.3d at 1115. First, as noted
above, the Appellants' mortgage contains the prevailing
party fee provisions. Second, by virtue of the assignment and
the indorsement, Appellee joined Appellants, the original
mortgagors, as parties to the contract. Third, Appellants
prevailed on appeal, resulting in dismissal of the underlying
lawsuit. Having satisfied all three requirements, Appellants
are entitled to recover their attorney's fees and
expenses from Appellee.
section 57.105(7) cannot support an award of fees in favor of
parties who are strangers to the contract or where a contract
never existed. See Fla. Cmty. Bank, 197 So.3d at
1115 (defendant whose signature was forged on mortgage cannot
recover fees; not party to the contract); Bank of N.Y.
Mellon v. Mestre, 159 So.3d 953, 956-57 (Fla. 5th DCA
2015) (defendants not entitled to fees where their signatures
were forged on mortgage being foreclosed because not parties
to contract). Nor can section 57.105(7) be employed to impose
fees on a non-party to the contract. See Bank of N.Y.
Mellon Tr. Co. v. Fitzgerald, 215 So.3d 116, 121 (Fla.
3d DCA 2017) (defendant borrowers not entitled to fees under
section 57.105(7) after proving mortgage never assigned and
note never delivered to plaintiff); HFC Collection Ctr.,
Inc., 190 So.3d at 1117 (defendant not entitled to fees
under section 57.105(7) after proving that her credit card
agreement and debt ...