NATIONSTAR MORTGAGE LLC and U.S. BANK NATIONAL ASSOCIATION, as trustee for the benefit of Harborview 2005-2 Trust Fund, Appellants,
FARSHADI FARAMARZ, Appellee.
final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Joel T. Lazarus, Judge;
L.T. Case No. CACE 12-013378.
Allison Morat of Bitman O'Brien & Morat, PLLC,
Maitland, for appellants.
Jonathan Kline of Jonathan Kline, P.A., Weston, for appellee.
Nationstar and U.S. Bank appeal from the trial court's
award of prevailing party attorney's fees and costs to
Farshadi Faramarz after Faramarz successfully obtained an
involuntary dismissal of the mortgage foreclosure complaint.
Faramarz cross-appeals from the same final order. As
discussed herein, we agree with Appellants that Faramarz is
not entitled to prevailing party fees and costs. We therefore
reverse on the first issue in the main appeal. The reversal
moots the second issue in the main appeal (regarding the
application of a multiplier to the fee award) as well as the
cross-appeal (regarding the reduction of the hourly rates of
Faramarz's counsel in the fee award).
Bank filed a foreclosure complaint against Faramarz. The bank
alleged it was the holder of the note. Faramarz moved to
dismiss, arguing the bank "never had standing to
initiate this lawsuit." The trial court denied the
motion to dismiss. Faramarz then filed an answer and raised
several affirmative defenses, including failure to comply
with conditions precedent, breach of contract, and lack of
standing to initiate the lawsuit. He also asserted
entitlement to prevailing party attorney's fees and costs
pursuant to the reciprocity provision of section 57.105(7),
Florida Statutes (which renders a unilateral contract clause
for prevailing party fees-such as that contained in the
trial, Nationstar was substituted for U.S. Bank as the
plaintiff. At trial, the parties stipulated to the
introduction of the note and mortgage (executed by Faramarz),
the assignment of mortgage (from MERS, as nominee for the
original lender, to U.S. Bank), and the power of attorney
(from U.S. Bank to Nationstar).
Nationstar presented its case, Faramarz moved for involuntary
dismissal based on standing. He argued there was "no
testimony that . . . at the time the complaint was filed . .
. that the trust or the purported Plaintiff, whoever the
Plaintiff is, possessed the note, and you have to do that . .
. even with a blank endorsement, you have to say that there
was possession of the note at the time that the pleadings,
that the complaint was filed."
trial court granted Faramarz's motion for involuntary
dismissal, finding that the plaintiff lacked standing at the
inception of the lawsuit. The court further ruled that,
"if [Faramarz] pled for attorneys' fees and he has
got an involuntary dismissal, he has the right to
attorneys' fees. I don't know any argument against
trial court subsequently entered a written order dismissing
the case without prejudice, awarding attorney's fees and
costs to Faramarz, and reserving jurisdiction to determine
the amount of fees and costs. Nationstar unsuccessfully moved
for rehearing, and did not appeal from the dismissal order.
Faramarz filed a motion to determine the amount of prevailing
party attorney's fees and costs.
hearing, the trial court awarded Faramarz attorney's fees
totaling $96, 100.00 (having applied a multiplier of 2.0).
The court also awarded $5, 000.00 for the fee expert, and $3,
600.00 in taxable costs (the majority of which was for the
fee expert's deposition and deposition preparation). The