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41 » VISIT US ONLINE @ DSNEWS.COM Wood & Boyer, P.A. expanded on the issue. "e Fourth District ruled this past year that Florida Statute 57.105 must be strictly construed and has two elements: that the party must have prevailed and the party had to be party to the contract. Nationstar Mortgage LLC v. Glass held that, 'the movant must establish that the parties to the suit are also entitled to enforce the contract containing the fee provision.' Further, 'where a party prevails by arguing the Plaintiff failed to establish it had the right pursuant to the contract to bring the action, the party cannot simultaneously seek to take advantage of a fee provision in that same contract.'" "And the Fourth District is not alone," continues McDowell. "e ird District held in Bank of New York Mellon Tr. Co., N.A. v. Fitzgerald that, because the borrower 'success- fully obtained a judgment below that of the bank lacked standing to enforce the mortgage and note against her, we find that no contract existed between the bank and Fitzgerald that would allow Fitzgerald to invoke the mutuality provisions of section 57.105(7)." Glass and companion case Lakmaitree are currently before the Florida Supreme Court, waiting to see if the court will accept jurisdic- tion in a case that could have massive implica- tions for consumer protections. "If these rulings stand," said McDowell, "they may result in a radical shift in foreclosure and consumer debt collection defense as Borrowers would be precluded from recovering attorneys' fees if they are successful in defending the suit based on challenges to standing, one of the most basic and often-utilized defenses. Plaintiffs and Defendants alike will be anxiously awaiting the court's decision in 2018 as trial courts through- out the state are beginning to follow suit and deny Defendants' entitlement to attorneys' fees." Ulrich discussed one situation many in the industry have no doubt encountered: the confusion and complications that can occur when someone who signed and initialed a mort- gage isn't actually identified in the body of the mortgage. "In the case of Bank of New York Mellon v. Rhiel, the Bankruptcy Appellate Panel of the United States Court of Appeals for 6th Circuit certified a Question of State Law to the Ohio Supreme Court in September of 2017. e Ohio Supreme Court accepted the certified Question of State Law and will answer the following questions: 1) Whether an individual who is not identified in the body of a mortgage, but who signs and initials the mortgage, is a mortgagor of his or her inter- est? 2) Is a mortgage signed and initialed by an individual whose name is not identified in the body of the mortgage, but whose signature is properly acknowledged pursuant to Ohio Revised Code Sec. 5301, invalid as a matter of law such that parol evidence is not admissible to determine the intent of the individual in signing the mortgage? According to Ulrich, the Ohio Supreme Court's opinion on this matter "will determine if a Chapter 7 Trustee in a bankruptcy case can avoid the mortgage encumbering the debtor's interest in the property so that she can bring money into the bankruptcy estate for the benefit of unsecured creditors." PARTNERING FOR THE FUTURE Beyond all the rules and regulations, the servicing industry is, like any other business venture, about people. We asked our legal experts about how law firms and servicers could better partner in 2018, and how they could im- prove that symbiotic relationship going forward. "In judicial jurisdictions, the issue of streamlining should be focused on the ability to provide quality litigation support," Diaz said. "Mortgagees must place value on good litigation practice, which is a concept that has historically been less of an issue. Streamlining ease of obtaining supporting documentation and informed client communication is critical to ensuring streamlined litigation. Mortgagees should establish quality litigation staff to work closely with a Plaintiff 's counsel." Hernandez pinpoints communication as key. "e mortgage industry is a fast-paced environment and defense attorneys/borrowers are always looking to develop new strategies to avoid or delay foreclosure actions," Hernandez said. "It is imperative that law firms and the mortgage industry stay proactive on educating themselves on potential litigated issues. is may include continual news blasts or some in- house training by law firms to the servicers as to hot topic issues." "Because lawyers are 'in the field' work- ing cases through the court systems, servicers will always benefit from practical tips from the lawyers as to what works and what does not work from the court's standpoint," said Ulrich. "Whether method of servicing, escalation procedures, attendance to and at mediations or working with loss mitigation with borrowers, it pays for the servicers to understand what the courts feel needs improvement. Opening up to suggestions from the lawyers as to how to improve the impression the courts have of the servicer would greatly reduce wrinkles with timelines and improve relationships with every- one involved with the case. Although this is not a new suggestion for 2018, it is becoming more imperative for servicers to fall into good grace with the courts so that the courts make a turn from being overly pro-borrower/debtor." With the future ever uncertain, a strong partnership between mortgage professionals and the legal experts who support them will be as crucial as ever. "In judicial jurisdictions, the issue of streamlining should be focused on the ability to provide quality litigation support." – Roy A. Diaz, SHD Legal Group, P.A.

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