CORALIA RUBIELLA
v.
CASCADE FUNDING RM3 ACQUISITIONS GRANTOR TRUST
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A unilateral attorney's fee provision in a nonrecourse mortgage is made reciprocal by section 57.105(7), entitling a prevailing borrower to attorney's fees.
[1] A unilateral attorney's fee provision in a mortgage on a nonrecourse loan is rendered reciprocal under Florida Statutes section 57.105(7), allowing a prevailing borrower-…
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Join FLexlaw to unlock all legal intelligence“To the extent Suchman holds that, as a matter of law, the reciprocity provision of section 57.105(7) cannot apply to authorize an award of attorney's fees to a prevailing borrower on an underlying nonrecourse loan, we determine such a holding has been implicitly overruled by the Florida Supreme Court's recent decision in Page v. Deutsche Bank Tr. Co. Ams.”
The court's explanation of how its prior precedent was overruled by subsequent Florida Supreme Court authority.
Rubiella borrowed money on a reverse mortgage containing a unilateral prevailing-party attorney's fee provision favoring the lender. She successfully …
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Third District Court of Appeal
State of Florida
Opinion filed May 19, 2021. Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0816 Lower Tribunal No. 19-15630
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Coralia Rubiella,
Appellant,
vs.
Cascade Funding RM3 Legal Services of Greater Miami, Inc., and Matthew Bayard, Jeffrey M. Hearne, and Mandy L. Mills, for appellant. Nelson Mullins, and Terrance W. Anderson, Jr. (Boca Raton), for appellee. Before EMAS, C.J., and HENDON and MILLER, JJ. EMAS, C.J. Coralia Rubiella—the borrower and defendant in this reverse mortgage foreclosure—appeals the trial court’s order denying her motion for attorney’s fees following a successful defense of the action below.1 The reverse mortgage at issue contained a unilateral prevailing-party attorney’s fee provision in favor of the lender. Rubiella’s motion for attorney’s fees alleged that, as the prevailing party, section 57.105(7), Florida Statutes (2019), applied to make the unilateral attorney’s fee provision reciprocal, thereby entitling her to an award of attorney’s fees. In response, Cascade Funding RM3 Acquisitions Grantor Trust countered that because the underlying loan was non-recourse—meaning Rubiella could not be personally liable for the lender’s attorney’s fees even if Cascade had prevailed—reciprocity under section 57.105(7) was inapplicable and therefore Rubiella was not entitled to attorney’s fees.
The trial court denied Rubiella’s motion for attorney’s fees, based on this court’s 1992 decision in Suchman Corp. Park, Inc. v. Greenstein, 600 So. 2d 532, 533 (Fla. 3d DCA 1992). In Suchman we held that, because the underlying mortgage was based upon a nonrecourse loan, in which the borrower cannot be personally liable for the lender’s attorney’s fees should