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Lender Not Liable for Attorney Fees | Key Points

  • In Florida, a court can only award attorneys’ fees to a prevailing party “when authorized by contract or statute.”
  • The standard provisions of a note and mortgage (in Florida) include the right of a prevailing party to collect attorneys’ fees, including appellate attorneys’ fees.
  • The contractual right to attorneys’ fees is reciprocal under Fla. Stat. 57.105(7) so a borrower or the bank can rely on this provision as a basis for seeking fees.
  • To obtain a fee award based on the fee provisions in the note and mortgage, a party must satisfy two requirements: First, they must have prevailed in the foreclosure action and/or on appeal. Second, both the party seeking fees and the party against whom fees are sought must be parties to the note and mortgage.
  • If a borrower successfully argues the bank lacks standing under the contract to pursue foreclosure, the borrower cannot rely on fee provisions in the note or mortgage because a finding that the bank lacks standing is also a finding that the bank is not a party to the note or mortgage for purposes of that particular action.

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