1. Last month the Florida Supreme Court found borrower Terri Page was entitled to attorneys’ fees against her lender (“Deutsche Bank” or “the Bank”) even though Page successfully established at trial that the Bank lacked standing to foreclose. Page v. Deutsche Bank Tr. Co. Americas, SC19-1137, 2020 WL 7778183 (Fla. Dec. 31, 2020). By way of history, the trial court dismissed Deutsche Bank’s foreclosure against Page based on its failure to prove standing at the inception of the case and awarded Page attorneys’ fees based on the reciprocity provision of § 57.105, Fla. Stats. The Bank appealed and the Fourth DCA reversed concluding “NO STANDING = NO ATTORNEY’S FEES.” Page appealed that order to the Florida Supreme Court.

  2. The Florida Supreme Court accepted jurisdiction based on an inter-district conflict between the Second, Fourth and Fifth DCAs on the issue of entitlement to attorney fees under § 57.105(7) when a borrower successfully defends a foreclosure action based on lack of standing. Relying on the plain language of § 57.105(7), the Florida Supreme Court found the note, mortgage and Deutsche Bank’s evidence of standing at trial “established the contractual relationship” between Page and the Bank. The Court further surmised that Page was the prevailing party because she successfully defended against the foreclosure action brought by the Bank. The Court concluded that nothing more was required to satisfy the two prongs of § 57.105(7) so Page was entitled to fees under the statute.

  3. The Court quashed Page and approved Madl (2nd DCA) and Harris (5th DCA). This ruling, although anticipated, is a costly one for lenders. Thankfully, its application is easily avoided by pre-suit procedures wherein the original note is located and the bank’s standing established through any necessary assignments, endorsements or other evidence.

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