S. J. RUDOLPH, TRUSTEE, APPELLANT,
v.
THELMA R. UNGER AND VICTORIA RICHARD, APPELLEES
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A mortgagor sought attorney's fees from a mortgagee for releasing only part of property encumbered by a 1974 mortgage. The court held that attorney's fees under Florida Statute Section 701.04 (amended in 1980) are only recoverable when a mortgage is fully satisfied, not upon partial release, and the statute has no retroactive effect.
The court held that attorney's fees are only recoverable under Section 701.04 when the mortgage lien is fully paid, not upon a partial release. Additionally, the statute creating the right to recover fees, adopted after execution of the mortgage contract, does not have retroactive effect.
[1] A statute enacted after the execution of a contract does not have retroactive effect.
[2] A partial release of property encumbered by a mortgage does not constitute a satisfaction of the mortgage for purposes of statutory attorney's fees.
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Join FLexlaw to unlock all legal intelligence“the statute creating the right to recover fees was adopted after the execution of the contract and does not have retroactive effect”
Establishes that Section 701.04, amended in 1980, cannot be applied to a mortgage executed in 1974.
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Join FLexlaw to unlock all legal intelligenceA mortgagor brought a legal proceeding seeking attorney's fees against a mortgagee (Unger and Richard) for the partial release of certain lands encumb…
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PER CURIAM.
We hold that the trial court properly denied attorney’s fees to a mortgagor upon the release of a part of the real property included in a lien created by a 1974 mortgage. The mortgagor claimed fees pursuant to Section 701.04 of the Florida Statutes as amended in 1980.1
First, the statute creating the right to recover fees was adopted after the execution of the contract and does not have retroactive effect. Tuggle v. Government Employees Insurance Company, 220 So. 2d 355 (Fla.1969); McCord v. Smith, 43 So. 2d 704 (Fla.1950); Stone v. Town of Mexico Beach, 348 So. 2d 40 (Fla. 1st DCA 1977). Secondly, a partial release of certain lands encumbered by mortgage is not a satisfaction. The statute is in derogation of the common law and should be strictly construed. Carlile v. Game & Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1977); Board of Regents of the State of Florida v. Coffey, 378 So. 2d 52 (Fla. 1st DCA 1979); Stone v. Town of Mexico Beach, supra; Lendsay v. Cotton, 123 So. 2d 745 (Fla. 3d DCA 1960).
Attorney’s fees are only recoverable under this statute when the lein created by the mortgage is “fully paid”. Then a successful mortgagor who brings a legal proceeding is entitled to fees.
Therefore the order under review is affirmed.
Affirmed.
. 701.04 Cancellation of mortgages, liens, and judgments. Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county. Within 60 days of the date of receipt of the full payment of the mortgage, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien or judgment shall send or cause to be sent the recorded satisfaction to the person who has made the full payment: In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney's fees and costs.
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Atl. Nat'l Bank OF Fla. v. Tworoger, 448 So. 2d 616 (Fla. 3d DCA 1984)…al judgment which refused to award attorneys’ fees to the appellees/cross-appellants under Section 57.105, Florida Statutes (1983). [*617] Section 701.041 is a statute in derogation of the common law and must be strictly construed. Rudolph v. Unger, 417 So. 2d 1095 (Fla. 3d DCA 1982). It has, accordingly, been held that the attorneys’ fees provision of Section 701.04 which became effective on October 1, 1980, see Ch. 80-17, § 1, Laws of Fla., cannot be retroactively applied to mortgages which, as here, were cr…1 / 2
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Lou Bacon v. Marden, 518 So. 2d 925 (Fla. 3d DCA 1987)…ida Nat’l Bank, 100 So. 2d 807, 810 (Fla.1958). Cf. Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362 (Fla.1977) (statute in derogation of common law doctrine affording state sovereign immunity, must be strictly construed); Rudolph v. Unger, 417 So. 2d 1095 (Fla. 3d DCA 1982) (statute, permitting prevailing party to recover attorney’s fees, in derogation of the common law, must be strictly construed). See generally 3 A. Scott, Trusts § 240.1 (3d ed. 1967). The history of section 738.12(1) supports th…
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Parke v. Gonzalez, 606 So. 2d 705 (Fla. 3d DCA 1992)…yment, as required by the statute, was not made until August 7, 1991. A party may not recover attorney’s fees and costs incurred prior to 60 days after making full payment. See Olsen v. O’Connell, 466 So. 2d 352 (Fla. 2d DCA 1985); Rudolph v. Unger, 417 So. 2d 1095 (Fla. 3d DCA 1982). See also Atlantic Nat’l Bank of Fla. v. Tworoger, 448 So. 2d 616 (Fla. 3d DCA 1984) (section 701.04 confined to actions brought by parties who have fully paid off mortgages). Sixty days following full payment in this case was Oct…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carlile v. Game & Fresh Water Fish Comm'n of the State of Fla., 354 So. 2d 362 (Fla. 1977)
- McCord v. Smith, 43 So.2d 704 (Fla. 1949)
- Lendsay v. Polk F. Cotton and Betty Anne Cotton, 123 So. 2d 745 (Fla. 3d DCA 1960)
- Silas R. Stone and Charles R. Krisher v. Town OF Mexico Beach, 348 So. 2d 40 (Fla. 1st DCA 1977)
- Eldred L. Tuggle and Catherine Tuggle v. Gov't Emps. Ins. Co., 220 So. 2d 355 (Fla. 1969)
- Bd. OF Regents OF the State OF Fla. v. Coffey, 378 So. 2d 52 (Fla. 1st DCA 1979)