NOVASTAR MORTGAGE, INC., APPELLANT,
v.
JAMES P. STRASSBURGER, AND EUPHEMIA STRASSBURGER, APPELLEES
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Novastar Mortgage appealed an award of attorney's fees to the Strassburgers, arguing they were not parties to the mortgage and thus ineligible for fees under the mortgage's fee provision. The court agreed on that point but affirmed the fee award because the Strassburgers prevailed under Florida's offer of judgment statute, which applied because the underlying action sought damages despite its foreclosure characterization.
The Strassburgers were not entitled to attorney's fees under the mortgage provision because they were not parties to the mortgage. However, the fee award was proper under Florida's offer of judgment statute because the action constituted an action for damages, as the underlying promissory note had been paid and the lawsuit concerned only money.
[1] A party not named in a mortgage agreement cannot recover attorney's fees based solely on a provision within that mortgage.
[2] A unilateral attorney's fee provision in a mortgage may be made reciprocal by statute.
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Join FLexlaw to unlock all legal intelligence“Because the Strassburgers were not parties to the mortgage, they were not entitled to recover attorney's fees under the mortgage.”
Establishes the non-signatory rule barring recovery under the mortgage's fee provision.
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Join FLexlaw to unlock all legal intelligenceNovastar loaned money to fund a mortgage but was not assigned the note and mortgage due to mistake or misconduct. Novastar sued multiple defendants fo…
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KLEIN, J.
Novastar appeals an award of attorney’s fees against it, arguing that the fees should not have been awarded, under a provision in the mortgage, to a party who was not a party to the mortgage. We agree, but affirm because the party receiving the fees also prevailed on its offer of judgment.
Novastar loaned money to fund a mortgage, but through mistake or misconduct, was not assigned the note and mortgage. It brought an action against a number of defendants in which it sought damages and foreclosure. In a different foreclosure on the same property, the Strassburgers purchased the property from the lender seeking foreclosure. As a result of that purchase, they became parties in the Novastar action.
Although Novastar prevailed against the title insurer in its action, it did not prevail against the Strassburgers, and the trial court awarded the Strassburgers attorney’s fees based on the attorney’s fee provision in the original mortgage and section 57.105(6), Florida Statutes, which made that unilateral attorney’s fees provision reciprocal.
Because the Strassburgers were not parties to the mortgage, they were not entitled to recover attorney’s fees under the mortgage. Edwards v. Wills, 686 So. 2d 702 (Fla. 2d DCA 1996). We affirm, however, because the Strassburgers were entitled to fees under our offer of judgment statute, section 768.79.
The trial court ruled that this was not a “civil action for damages” under the statute, because it was a foreclosure. Novas-tar concedes, however, that it was seeking damages in the form of reimbursement for attorney’s fees and costs. In addition, the Strassburgers point out that the promissory note secured by the original mortgage had already been paid, and that this lawsuit was only about money.
We agree with the Strassburgers that this was in fact an action for damages and that the offer of judgment statute accordingly applies. Nelson v. Marine Group of Palm Beach, Inc., 677 So. 2d 998, 999 (Fla. 4th DCA 1996)(offer of judgment statute applied in declaratory action to determine whether contract authorized seller to retain deposit, because “the only matter at issue was money.”); Stewart v. Tasnet, Inc., 718 So. 2d 820 (Fla. 2d DCA 1998)(applying offer of judgment statute in action seeking the equitable remedy of subrogation because, if successful, it would have resulted in a monetary judgment). Affirmed.
WARNER and SHAHOOD, JJ., concur.
KLEIN, J.
We grant Novastar’s motion for rehearing in one respect. The amount of attorney’s fees must be reconsidered by the trial court on remand because, under section 768.79, Florida Statutes the Strass-burgers are only entitled to attorney’s fees incurred after service of the offer of judgment. The motion for rehearing is otherwise denied.
WARNER and SHAHOOD, JJ., concur.
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The Bank OF NEW York Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116 (Fla. 3d DCA 2017)…for attorney’s fees where signatures on mortgage were fraudulent and noting that “we are doubtful that section 57.105(7) authorizes attorney’s fees pursuant to a contract that was found to have never existed”); Novastar Mortg., Inc. v. Strassburger, 855 So. 2d 130, 131 (Fla. 4th DCA 2003) (finding that appellees were not entitled to recover attorney’s fees under the mortgage and section 57.105(7) because they were not parties to the mortgage). [*120] We find our sister court’s opinion in HFC Collection Ctr.,…
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HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114 (Fla. 5th DCA 2016)…those circumstances, we held that no legal obligations were ever created between the parties. Accordingly, the Mestres could not recover attorney’s fees on the basis of the loan documents. Id. at 956; see also Novastar Mortg., Inc. v. Strassburger, 855 So. 2d 130, 131 (Fla. 4th DCA 2003) (holding that mortgage could not serve as basis for award of attorney’s fees to person who was not party to mortgage). In Surgical Partners, LLC, v. Choi 100 So. 3d 1267 (Fla. 4th DCA 2012), the Fourth District dealt with a…
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Fla. Cmty. Bank, N.A. v. RED Rd. Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016)…7.105(7) plainly requires, to gain the benefit of its substantive entitlement to prevailing party fees, the party seeking the benefit of reciprocity must be a party to the contract containing the fee provision. Novastar Mortg., Inc. v. Strassburger, 855 So. 2d 130 (Fla. 4th DCA 2003); Edwards v. Wills, 686 So. 2d 702 (Fla. 2d DCA 1996). See also HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114 (Fla. 5th DCA 2016). Ada Rios does not appear to contest this proposition. Rather, in oral argument, she soug…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nelson v. THE Marine Grp. OF Palm Beach, Inc., 677 So. 2d 998 (Fla. 4th DCA 1996)
- Edwards v. Wills, 686 So. 2d 702 (Fla. 2d DCA 1996)
- L.D. Stewart and Michael J. Maricle v. Tasnet, Inc., 718 So. 2d 820 (Fla. 2d DCA 1998)