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Deutsche Bank Trust Co. Americas v. Page

Florida Court of Appeals, Fourth District

June 12, 2019

DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE RALI 2006-QS6, Appellant,
v.
TERRI P. PAGE, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barry Stone, Senior Judge; L.T. Case No. CACE0966227.

          Kimberly Held Israel and William L. Grimsley of McGlinchey Stafford, Jacksonville, for appellant.

          Nicole R. Moskowitz of Neustein Law Group, P.A., Aventura, for appellee, Terri P. Page.

         En Banc[1]

          May, J.

         The 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.

         The 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.

         At 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.

         The trial court granted the borrower's motion for involuntary dismissal.[2] 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).

         The 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 the amount.

         Over a 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.

         The trial court awarded the borrower $52, 294 in attorney's fees. From this final judgment, the bank now appeals.

         The 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 ...


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