THOMAS PETROVSKY A/K/A THOMAS J. PETROVSKY AND NANCY PETROVSKY A/K/A NANCY R. PETROVSKY, APPELLANTS,
v.
HSBC BANK, USA, AS INDENTURE TRUSTEE FOR FRIEDMAN, BILLINGS, RAMSEY GROUP, INC. (FBR) SECURITIZATION NAME-FBRSI 2005-2, ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS, BANK OF AMERICA, N.A., TENANT # 1, TENANT # 2, TENANT # 3, AND TENANT # 4, APPELLEES

Fla. 4th DCA | 2016-02-17
No. 4D14-1485
GROSS and WARNER, JJ., concur.
185 So. 3d 700 Florida District Court of Appeal, Fourth District (2016) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Fourth District Court of Appeal affirmed a foreclosure judgment in favor of HSBC Bank but reversed and remanded the attorney's fees award because the trial court failed to conduct an evidentiary hearing on the amount of reasonable attorney's fees as required by law.


Holding

HSBC established standing as the holder of the note through the sufficiently affixed allonge with blank endorsement, and the admission of HSBC's business records was proper under the hearsay exception. However, the trial court erred in awarding attorney's fees without conducting an evidentiary hearing, as appellants did not waive their right to such a hearing by merely requesting one after trial.


Headnotes

[1] A party establishes standing as the holder of a note when an allonge containing a blank endorsement is sufficiently affixed to the note.

[2] Exhibits may be admissible under the business records exception to the hearsay rule.

Previewing 2 of 5 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

Key Quotes

“'Reasonable attorney's fees' generally are not liquidated damages and require a hearing. Absent an evidentiary hearing, the fee award will be reversed for a hearing unless there is an indication that the right to a hearing was waived.”

Establishes the legal standard that reasonable attorney's fees require an evidentiary hearing absent waiver.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

HSBC Bank, as indenture trustee, sought foreclosure against Thomas and Nancy Petrovsky. HSBC proved standing as the note holder through an allonge con…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
. LEVINE, J.

. LEVINE, J.

•Appellants appeal a final judgment of foreclosure entered in favor of HSBC Bank. We find HSBC proved standing as the holder of thé note because the allonge containing the blank endorsement was sufficiently affixed to the note. See Purificato v. Nationstar Mortg., LLC, 182 So.3d 821 (Fla. 4th DCA 2016). We also find no error in the admission of HSBC’s exhibits under the business record exception to the hearsay rule.

However, we reverse the portion of the final judgment awarding attorney’s fees without an evidentiary hearing. “ ‘Reasonable attorney’s fees’ generally are not liquidated damages and require a hearing. Absent an evidentiary hearing, the fee award will be reversed for a hearing unless there is an indication that the right to a hearing was waived.” Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766 (Fla. 2d DCA 2010) (citation omitted); see also Roggemann v. Boston Safe Deposit & Trust Co., 670 So.2d 1073, 1076 (Fla. 4th DCA 1996).

After the trial court orally ruled in favor of HSBC, appellants requested an evidentiary hearing to determine a reasonable amount of attorney’s fees. HSBC claimed that during trial it asked the court to take judicial notice that it filed an affidavit of attorney’s fees, and appellants did not raise any objection. The court found that appellants waived their right to an evidentiary hearing.

Contrary to the trial court’s finding, appellants did not waive their right to an evidentiary hearing on attorney’s fees. During trial, HSBC merely referred to the fact that it had filed attorney’s fees affida-*702vite. HSBC did not request that the court take judicial notice of the affidavits. Moreover, the affidavits were not introduced as an exhibit at trial. By requesting that the court hold an evidentiary hearing on the issue of attorney’s fees, appellants preserved their right to a hearing.

In Diwakar v. Montecito Palm Beach Condominium Ass’n, 143 So.3d 958 (Fla. 4th DCA 2014), the bank filed an affidavit of attorney’s fees before trial, but the affidavit was not admitted into evidence during trial. This court found the evidence insufficient to support the attorney’s fee award, and reversed and remanded for the trial court to take additional evidence on attorney’s fees. Similarly, in Wagner v. Bank of America, N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014), the court remanded for an evidentiary hearing on the amount of attorney’s fees where the only evidence of fees was an affidavit filed by the bank prior to trial.

Like in Diwakar and Wagner, the attorney’s fees affidavits HSBC filed before trial were insufficient to support the fee award. Accordingly, we reverse the portion of the final judgment awarding attorney’s fees, and remand for the trial court to conduct an evidentiary hearing thereon.

Affirmed in part, reversed in part, and remanded.

GROSS and WARNER, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Black Point Assets, Inc. v. M C M Cap. P'rs, 236 So. 3d 1134 (Fla. 2d DCA 2018)
  • Amanzimtoti Props., LLC. v. Ocwen Loan Servicing, LLC., 204 So. 3d 468 (Fla. 4th DCA 2016)
    …orney’s fees generally are not liquidated damages and require a hearing. Absent an evidentiary hearing, the fee award will be reversed for a hearing unless there is an indication that the right to' a hearing was waived.” Petrovsky v. HSBC Bank, USA, 185 So. 3d 700, 701 (Fla. 4th DCA 2016) (citation and internal quotation marks omitted). “An award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonabl…

Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw