WALEED S. NOBANI, APPELLANT,
v.
BARCELONA DEVELOPMENT CORPORATION, ETC., ET AL., APPELLEES
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Nobani appealed the trial court's denial of additional attorney's fees in a subsequent foreclosure action caused by his predecessor's failure to include all junior lienholders in the original foreclosure. The court affirmed the denial, holding that equitable principles permitted the trial court to decline recovery where Nobani's own predecessor's error necessitated the second action.
The trial court properly denied additional attorney's fees under equitable principles. Although mortgage foreclosure is an action in equity where the court may vacate judgments, the court does not have unlimited discretion to award attorney's fees when one party's own predecessor's error created the necessity for a second action. The mortgagee is not responsible for fees and costs resulting from the mortgagor's predecessor's mistake.
[1] A trial court may vacate or set aside a foreclosure judgment at any time prior to sale pursuant to section 702.07, Florida Statutes.
[2] An order staying a foreclosure sale and allowing a defendant to amend an answer can be considered an order vacating the final decree of foreclosure.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Pursuant to section 702.07, Florida Statutes (1993), the circuit court has the authority to vacate or set aside any foreclosure judgment at any time prior to sale.”
Establishes the court's equitable authority to modify foreclosure judgments
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Join FLexlaw to unlock all legal intelligenceNobani's predecessor in interest filed an original foreclosure action but failed to include all junior lienholders as defendants. This defect required…
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COBB, Judge.
The issue on this appeal is whether the trial court erred in denying Waleed S. Noba-ni additional attorney’s fees in a subsequent foreclosure action which was brought because Nobani’s predecessor in interest failed to include all junior lien holders as defendants in an original foreclosure action.
Essentially, Nobani contends that his right to recover additional attorney’s fees was “strictly a matter of contract” and thus, the agreements between the parties allowed No-bani to recover all his reasonable costs and expenses.
Additionally, Nobani claims that even though a mortgage foreclosure action is one in equity, the trial court does not possess “unlimited discretion” and since there was no usurious loan, fraud, misconduct or breach by the mortgagee, it was not proper for the lower court to deny Nobani his additional attorney’s fees based on equity principles.
The appellee takes the position that Noba-ni’s motion to substitute parties and motion to file a second amended complaint that added new defendants was not the same as a motion to vacate or set aside the initial summary final judgment of foreclosure.
Pursuant to section 702.07, Florida Statutes (1993), the circuit court has the authority to vacate or set aside any foreclosure judgment at any time prior to sale. Here, the trial court considered and granted two motions filed by Nobani which were in legal effect, orders that vacated the final judgment of foreclosure. Grace v. Hendricks, 103 Fla. 1158, 140 So. 790 (1932) (court order staying foreclosure sale and allowing defendant to amend answer was in legal effect an order vacating the final decree of foreclosure).
We agree with the equitable position expressed by the trial court that Barcelona is not responsible for additional attorney’s fees and costs since Nobani’s predecessor in interest made the mistake of not including all the necessary defendants in the foreclosure action. See Mitrany v. Chase Federal Savings and Loan Association, 590 So. 2d 509, 510 (Fla. 4th DCA 1991) (neither party had totally clean hands where the bank should have served the junior lienor in the first place).
Accordingly, the decision of the trial court to deny additional attorney’s fees and costs is affirmed.
AFFIRMED.
DAUKSCH and W. SHARP, JJ., concur.
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Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 968 So. 2d 658 (Fla. 2d DCA 2007)…efore the sale that were not previously authorized. History, at least, would not seem to support the negative inference proposed by the Nesters, which would provide more protection for the banks and purchasers. . See Nobani v. Barcelona Dev. Corp., 655 So. 2d 250, 251 (Fla. 5th DCA 1995); Sun Bank, N.A. v. Stocks, 548 So. 2d 305, 306 (Fla. 1st DCA 1989); J.M. Realty Inv. Corp. v. Stern, 296 So. 2d 588, 589 (Fla. 3d DCA 1974); Aluminum Irrigation, Inc. v. Empire Capitol Corp., 194 So. 2d 922, 923 (Fla. 2d DCA…
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Authorities Cited
- Grace v. Hendricks, 103 Fla. 1158 (Fla. 1932)
- Mitrany v. Chase Fed. Sav. & Loan Ass'n, 590 So. 2d 509 (Fla. 4th DCA 1991)