1. The Florida Supreme Court (“the Court”) issued a written opinion on January 4, 2019 which found a mortgagor who successfully obtained dismissal of the bank’s foreclosure complaint was entitled to prevailing party attorney’s fees under the mortgage and § 57.105(7), Fla. Stats. Glass v. Nationstar Mort. LLC, etc., et. al., Case No. SC17-1387 (Fla. January 4, 2019). The Court overruled the Fourth DCA’s denial of fees which it based on Glass’ perceived success in arguing lack of standing to the trial court. The Court in Glass found the district court mischaracterized the procedural history of the case and misstated the reasons for dismissal which were not identified by the lower court in its order of dismissal.
  2. Importantly, the Court distinguished but did not overrule Bank of New York Mellon Trust Co. v. Fitzgerald, 215 So. 3d 116 (Fla. 3d DCA 2017). In Fitzgerald, the trial court refused to grant fees to a mortgagor despite the fact she obtained judgment below based on the bank’s lack of standing. The Third DCA affirmed the denial of fees. In distinguishing Fitzgerald from Glass, the Court noted that the trial court in Fitzgerald made a specific finding that a contract between the mortgagor and the foreclosing plaintiff did not exist. That was sufficient to support the denial of fees.
  3. Although a troubling decision for the mortgage industry, there are limits to the Glass holding. Firstly, possession of the original negotiated note at the time of filing the complaint eliminates any basis for dismissal or an adverse judgment based on lack of standing. Secondly, if the bank’s foreclosure is unsuccessful based on lack of standing, the bank can still argue (perhaps counter-intuitively) that no contract existed between the plaintiff and the mortgagor. Admittedly, this latter issue will likely be the subject of future litigation.

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