FLORIDA CASE LAW UPDATES
WATERS V. WILMINGTON TRUST, N.A., 4D20-397, (Fla. 4th DCA May 26, 2021).
In a per curiam opinion, the Fourth District reversed the trial court’s order denying the homeowner’s motion for attorney’s fees under section 57.105(7), Florida Statutes (providing reciprocal attorney’s fees to the other party to a contract who prevails in a suit regarding that contract which provides fees for its enforcement). The Court explained the Lender confessed error (a way of consenting with the homeowner on appeal that the order denying fees should be reversed) based on the Florida Supreme Court’s recent holding in Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d 953 (Fla. 2020). However, the Fourth District characterized the Page holding as one which stands for the proposition that a mortgagor who prevails in a foreclosure action based on the plaintiff’s lack of standing at the time the lender filed the foreclosure action was entitled to prevailing party attorney’s fees. Moreover, the Court described the Lender’s confession of error as acknowledging the mortgage provided for “prevailing party attorney’s fees,” and that based on Page, the homeowner was entitled to fees for successfully defending the case in the trial court. Nevertheless, the standard residential mortgage form is bereft of any provisions that provide prevailing party attorney’s fees. This decision adds to the confusing jurisprudence regarding a borrower’s entitlement to attorney’s fees under section 57.105(7) when that borrower prevails by either showing the plaintiff did not prove standing or successfully proving a lack of standing defense. Document Link