201904.23
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UPDATE: FLORIDA SUPREME COURT ABANDONS PRIOR OPINION IN GLASS V. NATIONSTAR NULLIFYING ATTORNEY FEE AWARD TO BORROWER

In January we discussed in detail the Florida Supreme Court’s opinion in Glass v. Nationstar Mortgage, LLC. In that case, the Court reviewed the Fourth DCA’s decision to deny prevailing party attorneys’ fees to a borrower who obtained dismissal of a foreclosure action based on a successful lack of standing argument. The Fourth DCA concluded there was no contractual basis for a fee award since the trial court determined the bank was not a party to the mortgage contract. The borrower appealed that finding to the Florida Supreme Court which accepted jurisdiction on the basis that the Fourth DCA’s denial of fees conflicted with the First DCA’s award of attorneys’ fees in Bank of New York v. Williams.

On January 4, 2019, the Florida Supreme Court issued an opinion reversing the Fourth DCA’s denial of fees finding the borrower to be the prevailing party and entitled to fees under the mortgage contract which Nationstar continued to seek enforcement of until the dismissal of its case. Nationstar moved for rehearing. The Florida Supreme Court granted rehearing and issued a written opinion last week withdrawing its previous opinion. In its April 18, 2019 substituted opinion, the Florida Supreme Court dismissed the borrower’s appeal of the Fourth DCA order denying attorneys’ fees finding that appellate review by the Florida Supreme Court was not warranted and that “jurisdiction was improvidently granted.” There was no further explanation in the opinion.

The Court’s substituted opinion in Glass v. Nationstar is obviously a welcome “about face” on the attorney fee issue and suggests there is no conflict between the First DCA’s opinion in Williams and the Fourth DCA’s opinion in Glass. Trial courts are obliged to follow the precedent of their respective DCA, but to the extent a precedent has not yet been set or perceived, conflicts remain.  We anticipate more litigation on the issue. Stay tuned.