FRANK WATERS
v.
U.S. BANK, N.A.
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A mortgagor who prevails in a foreclosure action based on the trustee's lack of standing at the time of filing is entitled to recover attorney's fees under the mortgage contract.
[1] A mortgagor is entitled to attorney's fees as the prevailing party under section 57.105(7), Florida Statutes, when a mortgage foreclosure case is dismissed.
[2] Entitlement to attorney's fees based on statutory or contractual interpretation is reviewed de novo.
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Florida Supreme Court holding in Page v. Deutsche Bank Trust Co. Americas
Frank Waters successfully defended against a foreclosure action brought by Wilmington Trust by asserting a lack of standing defense. The trial court h…
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PER CURIAM.
Appellant Frank Waters appeals the trial court’s order denying his motion for attorney’s fees pursuant to our dismissal of the underlying foreclosure case in Waters v. Wilmington Trust, National Association for ARLP Securitization Trust Series 2015-1, 268 So. 3d 722 (Fla. 4th DCA 2018). The issue on appeal concerns Appellant’s entitlement to trial court attorney’s fees under section 57.105(7), Florida Statutes (2019), in a foreclosure action where the homeowner successfully defended against the foreclosure based on a lack of standing defense. We previously granted Appellant’s motion to stay the appeal pending the Florida Supreme Court’s review of our opinion in Deutsche Bank Trust Co. Americas v. Page, 274 So. 3d 1116 (Fla. 4th DCA 2019).
2
In Page v. Deutsche Bank Trust Co. Americas, 308 So. 3d 953 (Fla. 2020), the Florida Supreme Court quashed our Page decision, holding that a mortgagor who prevailed in a foreclosure action based on the trustee’s lack of standing at the time the latter filed the action was entitled to an award of attorney’s fees. Id. at 954, 961. Following this decision, we lifted the stay in the instant case.
Subsequently, Appellee Wilmington Trust filed a confession of error. Appellee acknowledged that Appellant’s mortgage provided for prevailing party attorney’s fees and that, based on the Florida Supreme Court’s holding in Page, Appellant was therefore entitled to the attorney’s fees he incurred while successfully defending the lower tribunal foreclosure action.
Accordingly, we remand the matter to the trial court with instructions to vacate the order denying Appellant’s motion and to determine the appropriate amount of attorney’s fees.
Reversed and remanded for further proceedings. DAMOORGIAN, CONNER and FORST, JJ., concur.
* * * Not final until disposition of timely filed motion for rehearing.
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U. S. Bank v. Mink (Fla. 2d DCA 2020)…e the copy "was marked up by an unknown party." This argument lacks merit because a pertinent discrepancy in the condition of the note is one in the indorsements. See Waters v. Wilmington Tr., Nat'l Ass'n for ARLP Securitization Tr. Series 2015-1, 268 So. 3d 722, 722-23 (Fla. 4th DCA 2018) ("The note attached to the complaint was not made payable to the plaintiff, and it contained no indorsements. . . . Unlike the note attached to the complaint, the original note was indorsed in blank."); Madl v. Wells Farg…
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- Blyth v. Ocwen Loan Servicing, LLC, 308 So. 3d 953 (Fla. 4th DCA 2021)
- Waters v. Wilmington Tr., 14 Fla. L. Weekly 1594 (Fla. 4th DCA 2018)