STEPHEN A. HENDERSON, JR., APPELLANT,
v.
ONEWEST BANK, FSB, APPELLEE
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In this reverse mortgage foreclosure case, the Florida First District Court of Appeal affirmed the trial court's judgment on all issues except the award of attorneys' fees. The court reversed and remanded the attorneys' fees award because the foreclosure plaintiff failed to present competent and substantial evidence supporting the claimed fees at trial.
The appellee may be entitled to attorneys' fees, but it must first present additional competent and substantial evidence at trial, including testimony from the lawyer who performed the services or an authorized law firm representative and expert testimony regarding the reasonableness of the rates and fees.
[1] A party seeking attorneys' fees in a mortgage foreclosure action must present competent, substantial evidence of the hours worked and the reasonableness of those hours an…
[2] Absent a stipulation or waiver, the party seeking attorneys' fees should typically present testimony from the attorney who performed the services or an authorized represe…
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Join FLexlaw to unlock all legal intelligence“Mortgage foreclosure plaintiffs seeking attorneys' fees must support their claim with competent, substantial evidence of the number of hours worked and evidence that those hours and hourly rates are reasonable.”
Establishes the legal standard for what evidence is required to support attorneys' fees claims in foreclosure cases
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Join FLexlaw to unlock all legal intelligenceThe case involved a foreclosure action on a reverse mortgage on the appellant's late mother's home. At the bench trial, the appellee's representative …
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Appellant raises multiple issues in this case involving foreclosure on his late mother’s reverse mortgage. We affirm on all issues except one, that one being the award of attorneys’ fees, as to which we reverse and remand for further proceedings.
Appellee’s representative testified at the bench trial that the amount of attorneys’ fees reflected in a proposed final judgment—$8,976.70—was accurate according to Appellee’s records. The proposed final judgment was not entered into evidence at the trial. Shortly before the bench trial, an attorney with Appellee’s law firm executed an “Affidavit as to Time, Effort, and Costs,” stating a total of $13,753.50 in fees were due for the representation, based on a blend of flat-rate and hourly fees. The affidavit was filed with the trial court before trial, and thus appears in the appellate record, but was never admitted into evidence or even mentioned at the trial; and neither the affiant nor any other representative of the law firm, nor any expert, testified at the trial. On these facts, Appel-lee may be entitled to attorneys’ fees, but it first must adduce additional competent and substantial evidence in support of the fees claimed.
Mortgage foreclosure plaintiffs seeking attorneys’ fees must support their claim with competent, substantial evidence of the number of hours worked and evidence that those hours and hourly rates are reasonable. Absent a stipulation or waiver, the party seeking fees should present testimony from the lawyer who performed the services or an authorized representative of the law firm, and an expert as to reasonableness of the rates and fees. Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc., 143 So.3d 958, 960-61 (Fla. 4th DCA 2014). If the record reflects some evidence supporting the fee award, but not testimony from the lawyer or law firm or an expert, the proper remedy is to remand for further proceedings. Id.) see also Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040-41 (Fla. 2d DCA 2015) (remanding for evidentiary hearing where record included fee and cost affidavits filed with the trial court but not admitted into evidence at trial) (citing Wagner v. Bank of Am., N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014)).
Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for the trial court to take additional evidence on attorneys’ fees.
ROWE and JAY, JJ., CONCUR.
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CED Cap. Holdings 2000 EB, LLC v. Ctcw-Berkshire Club, LLC, 363 So. 3d 192 (Fla. 6th DCA 2023)…mpetent evidence included time slips). CTCW, on the other hand, argues that we should agree with cases requiring an award of attorneys’ fees to be supported by evidence in the form of attorney testimony. See, e.g., Henderson v. OneWest Bank, FSB, 217 So. 3d 209, 210 (Fla. 1st DCA 2017) (holding that absent a stipulation or waiver, the party seeking fees should present testimony from the lawyer who performed the services or an authorized representative of the law firm); Pridgen v. Agoado, 901 So. 2d 961, 96…
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Ali v. Wells Fargo Bank, N.A., 264 So. 3d 1096 (Fla. 5th DCA 2019)
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Tucker v. LNV Corp. (Fla. 4th DCA 2023)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diwakar v. Montecito Palm Beach Condo. Ass'n, Inc., 143 So. 3d 958 (Fla. 4th DCA 2014)
- Colson v. State Farm Bank, 183 So. 3d 1038 (Fla. 2d DCA 2015)
- Wagner v. Bank OF Am., N.A., 143 So. 3d 447 (Fla. 2d DCA 2014)