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FLORIDA
Florida Foreclosure Ruling Impacts Recoup of Legal Fees
Sometimes when you win, you also lose. at's the reality that may
face some foreclosure defendants in the aftermath of a new ruling by
a Florida state appellate court, which throws a wrench into a common
foreclosure defense strategy.
As reported by Law.com, borrowers Frederick and Jonelle Sabido
had argued that Bank of New York Mellon did not have legal standing
to foreclose on their property because the bank was not initially a
signatory on their promissory note and mortgage. ey had originated
their mortgage with JPMorgan Chase Bank N.A., but it later passed
to Bank of New York Mellon.
e Sabidos successfully argued that the bank had "failed to show
how the note and mortgage came into its possession." However, that
strategy came back to bite them when it was time to try and recoup
their legal fees.
As Law.com explains, Florida Statute Section 57.105(7) has typically
allowed winners in foreclosure cases such as this one to then force
the losing party to pay their legal fees. ere's just one problem: the
Sabido's whole argument hinged upon proving that Bank of New York
Mellon didn't have legal standing in the first place.
Fourth District Court of Appeal Judge Robert M. Gross wrote
in his decision: "e borrowers' motion for fees is denied because the
Bank of New York Mellon was not a party to the note and mortgage
and because the borrowers successfully argued that the Bank of New
York Mellon was not entitled to enforce the instrument containing the
attorney fee provision."
"No one ever likes to see someone do good work and not get paid,"
said Roy D. Oppenheim, the attorney representing the Sabidos. "It
basically means that any bank can bring a foreclosure, whether they
have standing or not, and not worry about there being consequences
for such egregious conduct."
