CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR NORMANDY MORTGAGE LOAN TRUST, SERIES 2013-18, APPELLANT,
v.
SANDRA RUSHLOW, APPELLEE

Fla. 4th DCA | 2017-08-23
No. 4D16-1898
May and Damoorgian, JJ., concur.
231 So. 3d 558 Florida District Court of Appeal, Fourth District (2017) Positive Treatment
Cited by 8 cases
Topics
Standing To Sue

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Opinion of the Court
Conner, J.

ON MOTIONS FOR REHEARING AND CLARIFICATION

Conner, J.

We grant the appellant’s motions for rehearing and clarification filed on June 26, 2017, vacate our previous order denying appellant’s “alternative motions for rehearing, for a written opinion, or for rehearing en banc,” vacate the per curiam affirmance without opinion issued March 20, 2017, and substitute the following opinion.

The appellant appeals the trial court’s final judgment and orders granting the appellee’s motion for attorney’s fees subsequent to the involuntary dismissal of the foreclosure proceeding after trial. The trial court dismissed the case for multiple rea*559sons, one of which was lack of standing, both at the initiation of suit and at trial. The appellee sought and was awarded fees at the trial level on the basis of the attorney’s fees clause in the mortgage granting fees to the appellee if successful in an action to enforce the mortgage and the reciprocal provision of section 57.105(7), Florida Statutes (2015).

As we recently held in Nationstar Mortgage, LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017) (en banc), “[a] party that prevails on its argument that dismissal is required because the plaintiff lacked standing to sue upon the contract cannot recover fees based upon a provision in that same contract.” Id. at 899. Thus, we reverse the trial court’s final judgment and orders awarding trial attorney’s fees to the appellee. Upon remand, the trial court shall vacate the final judgment and orders awarding trial attorney’s fees and enter an order denying appellee’s motion for attorney’s fees.

Reversed and remanded.

May and Damoorgian, JJ., concur.

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Cited By

  • Madl v. Wells Fargo Bank, 244 So. 3d 1134 (Fla. 5th DCA 2017)
    …h DCA 2017), sheds no light on the subject as the two-sentence opinion does not discuss the existence vel non of any contractual relationship between the parties. Appellee also relies upon the fourth district's opinion Christiana Trust v. Rushlow , 231 So. 3d 558 (Fla. 4th DCA 2017), in which it reversed, citing to Glass , the trial court's award of attorney's fees to defendant pursuant to section 57.105(7) after finding that plaintiff lacked standing "both at the initiation of suit and at trial." Id. at 559…
  • Manila Lakmaitree v. 21ST Mortg. Corp., 238 So. 3d 324 (Fla. 4th DCA 2018)
    …ationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017). We subsequently addressed the issue in several cases, including Christiana Tr., a Div. of Wilmington Sav. Fund Soc’y, FSB for Normandy Mortgage Loan Tr., Series 2013-18 v. Rushlow, 231 So. 3d 558 (Fla. 4th DCA 2017), and, more recently, Sabido v. Bank of New York Mellon, 4D16- 2944, 2018 WL 735950 (Fla. 4th DCA Feb. 7, 2018). Furthermore, our sister districts have uniformly reached the same conclusion. Bank of N.Y. Mellon Tr. Co. v. Fitzgera…
  • Nationstar Mortg., LLC v. Joselito L. Martins, 240 So. 3d 732 (Fla. 4th DCA 2018)
    …ate the final judgment awarding fees to Mr. Martins. Nationstar Mortg. LLC v. Glass, 219 So. 3d 896, 899 (Fla. 4th DCA 2017); see also Christiana Tr., a Div. of Wilmington Sav. Fund Soc’y, FSB for Normandy Mortg. Loan Tr., Series 2013-18 v. Rushlow, 231 So. 3d 558, 559 (Fla. 4th DCA 2017). Reversed and remanded. TAYLOR and MAY, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2…

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