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Nationstar Mortgage LLC v. Faramarz

Florida Court of Appeals, Fourth District

June 26, 2019

NATIONSTAR MORTGAGE LLC and U.S. BANK NATIONAL ASSOCIATION, as trustee for the benefit of Harborview 2005-2 Trust Fund, Appellants,
v.
FARSHADI FARAMARZ, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal 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.

          Forst, J.

         Appellants 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).

         Background

         U.S. 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 mortgage-bilateral).

         Before 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).

         After 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."

         The 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 that."

         The 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.

         After a 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 ...


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