DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE RALI 2006-QS6, Appellant,
TERRI P. PAGE, et al., Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry Stone, Senior Judge; L.T. Case No.
Kimberly Held Israel and William L. Grimsley of McGlinchey
Stafford, Jacksonville, for appellant.
R. Moskowitz of Neustein Law Group, P.A., Aventura, for
appellee, Terri P. Page.
bank appeals an order awarding attorney's fees to the
borrower following an involuntary dismissal of its
foreclosure action. It argues the borrower is not entitled to
attorney's fees after it prevailed on its standing
defense. We agree and reverse.
bank filed a foreclosure action. The borrower filed an answer
and asserted the note and mortgage were void and
unenforceable and the bank lacked standing. The case
proceeded to trial.
trial, the borrower argued the bank lacked standing because
the note attached to the original complaint contained no
endorsements, the endorsements on the note attached to the
amended complaints did not contain dates, and the evidence
failed to prove it had standing at the inception of the
action. The bank responded that it had standing because it
possessed the note at the time it filed the complaint.
trial court granted the borrower's motion for involuntary
dismissal. It noted the original complaint contained
a note with no endorsements and that a successful transfer to
a holder requires "evidence of it other than three year
later appearing endorsements." It found no standing at
the inception of the action even though the bank had
established standing at trial. The bank appealed the
involuntary dismissal. We affirmed without opinion.
Deutsche Bank Tr. Co. Americas v. Page, 214 So.3d
674 (Fla. 4th DCA 2016).
borrower then moved for attorney's fees, arguing she
prevailed in the action and the note and mortgage provided
for attorney's fees. Pursuant to section 57.105(7),
Florida Statutes (2017), she argued entitlement to
attorney's fees. The trial court granted the
borrower's motion and reserved jurisdiction to determine
year later, the bank moved for reconsideration of the order
granting attorney's fees and costs. It argued that since
the borrower prevailed in its "lack of standing"
argument, the borrower was not entitled to an attorney's
fees award. The trial court denied the bank's motion.
trial court awarded the borrower $52, 294 in attorney's
fees. From this final judgment, the bank now appeals.
bank argues the borrower is not entitled to attorney's
fees because the involuntary dismissal was based on the
borrower's "lack of standing" defense. It
further argues the borrower cannot take an inconsistent
position and now argue entitlement to attorney's fees