Fla. Supreme Court Takes Jurisdiction Over Attorney Fees Controversy

Under current doctrine, banks can continually file baseless claims against homeowners until they win — mostly because the homeowner does not have infinite resources. In the meanwhile each time the banks lose they are not liable for attorney fees. But if they win they get attorney fees under F.S. §57.105. If the homeowner prevails on the theory that the named Plaintiff is an imposter having nothing to do with the loan, then, according to current doctrine, the basis for recovery of attorney fees (as set forth in the mortgage and note) does not apply.

The basic injustice of this doctrine has attracted the attention of the Florida Supremes. The logic should apply both for the homeowner and for the bank. That is what we mean by blind justice. If someone takes a position in court and ultimately prevails then they are entitled to fees if the contract provides for fees. The appellate courts have erroneously concluded that this can only be applied for the banks, not the borrower.

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See Fla. Supreme Court Weighs in on Homeowner’s right to Recover Attorney

The current doctrine is that once you have prevailed on the issue of standing you have also disproved your right to recover attorney fees. The problem is that the decisions have focused on the wrong thing: the contract exists regardless of who is asserting rights for or against the contract. If the finding of the court was that no contract ever existed, then it would make sense that neither party could claim any benefit from a contract that never existed.

But that is not what is happening. The courts have gone off the tracks and hopefully the Florida Supremes will fix the problem. The current doctrine assumes that for purposes of the case the contract does not apply to the party who filed the case seeking relief pursuant to the contract (the note and mortgage). The current process requires a homeowner to defend a baseless action. But having asserted rights under the contract, the banks should die by their own sword. Otherwise the banks can keep coming into court under the same named Plaintiff forcing the homeowner to defend the same action repeatedly — until they run out of money.

Failure to award fees to the homeowners presents a clear strategy to the banks. Since there is no risk of loss, they will keep filing actions in which their named Plaintiff has no standing until they win by default because the homeowner simply can’t afford to litigate forever.

If fees were awarded, as they always were until the courts  invented a doctrine to deny the fees, then the banks would have risk of loss and would therefore be inclined to file only file actions that had merit.

6 Responses

  1. Steve Nelson
    There was no ” meeting of the minds”!!! If there was who signed on behalf of that other party? And what consideration was givendors by them .. performance? ??

  2. So then those courts are engaging in sedition. And depravation of rights secured by the Constitution 18 USC 241 AMONG OTHERS and war against the Constitution =treason and vacate tell office the presume to hold thus impersonating the office holder (art III Section 1) “judges .. shall hold their office during good behaviour” anything less than “good behaviour” and th=y do not “hold their office” all orders and findings are Void ab initio! !!

  3. The contract [Note and mortgage’ should control this issue as there was a meeting of the minds that Attys Fees were in play thus equally, should be awarded to the prevailing party.
    From Steve at Consumer Rights Defenders at 818.453.3585

  4. It’s time for the judiciary to take their finger off the scales and end 10 years of free houses for non-parties.

  5. They are all in it together including Fannie and Freddie.

  6. That elected officials, regulators, the FBI, SEC, DOJ have not stopped the wholesale theft of America’s wealth is truly astounding.

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