JOSE TORRES
v.
THE BANK OF NEW YORK AS TRUSTEE

Fla. 4th DCA | 2018-08-22
No. 17-1625
252 So. 3d 274 Florida District Court of Appeal, Fourth District (2018) Positive Treatment
Cited by 23 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

Jose Torres appealed an order denying his motion for attorneys' fees and costs following the involuntary dismissal of a bank's foreclosure action. The court affirmed the denial of attorneys' fees but reversed the denial of costs, holding that a prevailing party in an involuntary dismissal is entitled to taxable costs under Florida Rule of Civil Procedure 1.420, regardless of fee provisions in the mortgage or note.

Holding

The court held that Torres is not entitled to attorneys' fees because he prevailed on the ground that the bank failed to prove entitlement to enforce the note and mortgage, which precludes him from invoking the fee provisions of those instruments. However, Torres is entitled to recover taxable costs under Florida Rule of Civil Procedure 1.420 because the case was involuntarily dismissed in his favor, and costs flow from the rule rather than from the mortgage or note.

Headnotes

[1] A party who prevails in litigation by defeating an opponent's entitlement to enforce a contract cannot thereafter recover attorneys' fees under that contract's fee provis…

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Key Quotes

“Because the homeowner prevailed on an argument that the bank failed to prove entitlement to enforce the note and mortgage, the homeowner cannot now seek to take advantage of the fee provisions of the note and mortgage.”

Establishes the principle that a party cannot invoke contractual fee provisions after prevailing by denying the other party's right to enforce the contract.

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Facts & Procedural History

The Bank of New York as Trustee filed a foreclosure action against Jose Torres. Torres prevailed by arguing that the bank failed to prove entitlement …

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Topics
Taxable Costs Involuntary Dismissal Motion For Attorney'S Fees Foreclosure

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Opinion of the Court

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. 07-026252 CACE (14).

Kendrick Almaguer and Peter Ticktin of The Ticktin Law Group, P.L.L.C., Deerfield Beach, for appellant.

J. Kirby McDonough of Quarles & Brady, LLP, Tampa, for appellee. PER CURIAM. Jose Torres (“the homeowner”) appeals an order denying his motion for attorneys’ fees and costs rendered in favor of the Bank of New York as Trustee (“the bank”) following an involuntary dismissal of the bank’s foreclosure action. We affirm in part and reverse in part. First, we affirm the denial of attorneys’ fees. Because the homeowner prevailed on an argument that the bank failed to prove entitlement to enforce the note and mortgage, the homeowner cannot now seek to take advantage of the fee provisions of the note and mortgage. See Sabido v. Bank of N.Y. Mellon, 238 So. 3d 867, 868-69 (Fla. 4th DCA 2018); Nationstar Mortg. LLC v. Glass, 219 So. 3d 896, 898 (Fla. 4th DCA 2017), review granted, No. SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018). However, we reverse the denial of costs. Florida Rule of Civil Procedure 1.420 provides in relevant part, “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of

2

costs.” Fla. R. Civ. P. 1.420(d); see also § 57.041(1), Fla. Stat. (2017) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment . . . .”). Because the case was involuntarily dismissed, the homeowner is entitled to taxable costs.

In this situation, any costs awardable to the homeowner flow from rule 1.420 and not from the subject mortgage and/or note.

We therefore remand for the trial court to consider what costs should be awarded as authorized by the Uniform Guidelines for Taxation of Costs in Civil Actions.1

Affirmed in part; reversed in part. GERBER, C.J., GROSS and CIKLIN, JJ., concur.

* * * Not final until disposition of timely filed motion for rehearing.

Footnotes
1 Fla. R. Civ. P. Taxation of Costs.

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Citator

Cited By

  • Torres v. The Bank of N.Y., 252 So. 3d 274 (Fla. 4th DCA 2018)
    …to take advantage of the fee provisions of the note and mortgage. See Sabido v. Bank of N.Y. Mellon, 238 So. 3d 867, 868-69 (Fla. 4th DCA 2018); Nationstar Mortg. LLC v. Glass, 219 So. 3d 896, 898 (Fla. 4th DCA 2017), review granted, No. SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018). However, we reverse the denial of costs. Florida Rule of Civil Procedure 1.420 provides in relevant part, “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once th…
  • Wells Fargo Bank, N.A. v. Moccia, 258 So. 3d 469 (Fla. 4th DCA 2018)
    …at Borrowers were entitled to fees under the mortgage and section 57.105(7). Following the trial court’s entitlement ruling, this Court issued Nationstar Mortgage LLC v. Glass, 219 So. 3d 896, 899 (Fla. 4th DCA 2017), review granted, No. SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018), wherein we held, consistent with the Third District’s holding in Fitzgerald, that “to be entitled to fees pursuant to the reciprocity provision of section 57.105(7), the movant must establish that the parties to the suit are al…
  • Deutsche Bank Tr. Co. Americas v. Page, 274 So. 3d 1116 (Fla. 4th DCA 2019)
    …er, Forst, Klingensmith, and Kuntz, JJ., concur. The trial court also found the default letter defective. The Second District certified conflict with Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017), review granted , SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018), and review dismissed as improvidently granted , 268 So. 3d 676 (Fla. 2019), reh'g stricken , SC17-1387, 2019 WL 1986842 (Fla. May 6, 2019) and Bank of New York Mellon Tr. Co., N.A. v. Fitzgerald , 215 So. 3d 116 (Fla. 3d DCA 20…

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