75
for fees under section 57.105(7). "There
was no adjudication that the note and
mortgage never existed or that the bank
never acquired the right to enforce the note
and mortgage. The bank simply failed to
carry its burden of proving it was the holder
of the endorsed note at the time suit was
filed."
Finally, the court rejected the bank's
argument that the trial court lacked subject-
matter jurisdiction to award fees because
standing is a component of subject-matter
jurisdiction. The court cited to its precedent
that standing is a waivable defense and
therefore is not a component of subject-
matter jurisdiction.
WHAT DOES THIS MEAN?
e "No Standing = No Fees" argument
is effectively dead. Other than cases where it
is proved that the note and mortgage do not
exist, the borrower is adjudicated a non-party,
or standing to foreclose does not exist either
at the inception of the case or at trial, it is
unlikely that an award of attorney's fees to
the borrower will be denied.
WHAT MAY BE TO COME?
e court appears skeptical of the rule
that standing to foreclose must be proven at
the inception of the action, as opposed to later
during litigation. e court noted in a footnote
that the issue was not before the court, and
"we therefore have no occasion to address the
soundness of that rule." e court also questioned
the purpose rule during oral argument.
Jonathan Blackmore is Of Counsel
at GrayRobinson, P.A. Blackmore
has represented mortgage servicers
and banks in default litigation in
Florida for over a decade. He
advises industry clients in state and
federal litigation, appeals, transactions, and regulatory
compliance including, but not limited to, foreclosure
proceedings, Real Estate Settlement Procedures Act
(RESPA), Truth in Lending Act (TILA), Fair Credit
Reporting Act (FCRA), Florida's Deceptive and Unfair
Trade Practices Act (FDUTPA), Florida's Consumer
Collection Practices Act (FCCPA), Fair Debt Collections
Practices Act (FDCPA), and Consumer Financial
Protection Bureau (CFPB). He can be reached at Jonathan.
Blackmore@gray-robinson.com.
The "No Standing =
No Fees" argument is
effectively dead. Other
than cases where it is
proved that the note
and mortgage do not
exist, the borrower
is adjudicated a non-
party, or standing to
foreclose does not exist
either at the inception
of the case or at trial,
it is unlikely that an
award of attorney's fees
to the borrower will be
denied.
