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Madl v. Wells Fargo Bank, N.A.

Florida Court of Appeals, Fifth District

May 18, 2018

JOE MADL AND MELISSA MADL, Appellants,
v.
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, ET AL., Appellees.

         INTERIM NON-DISPOSITIVE OPINION. NO MANDATE WILL BE ISSUED AT THIS TIME.

          Appeal from the Circuit Court for Brevard County, Lisa Davidson, Judge.

          Beau Bowin, of Bowin Law Group, Satellite Beach, for Appellants.

          Adam 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.

          Jacob A. Brainard, Scott C. Davis and Michael H. Casanover, of Business Law Group, P.A., Tampa, for Appellee, Suntree Master Homeowners Association, Inc.

         No appearance for other Appellee.

         ON MOTIONS FOR REHEARING, CERTIFICATION OF CONFLICT, AND RECONSIDERATION

          EDWARDS, J.

         Appellee, 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.[1] Appellee has also filed a motion for rehearing en banc, which is denied by a separate order.

         Under 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.

         We also 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.

         Appellants' 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 2016).

         In 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.

         Conversely, 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 ...


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