“Whenever you’re dealing with attorney fees, it’s a very sensitive issue,” attorney Roy Oppenheim said. “The court should have known that they were going to create a ruckus and a firestorm.”
Florida Supreme Court in Tallahassee.A dispute over appellate attorney fees for prevailing borrowers in foreclosure cases is now before the state’s highest court.
At the heart of the issue: Claims by some foreclosure defense attorneys that recent appellate rulings are a strategy from courts to discourage lawyers from representing homeowners who defaulted on their mortgages. The defense attorneys claim courts use their arguments against them to deny motions when they try to recoup fees for defending the suits.
Now it appears the Florida Supreme Court may weigh in. On Tuesday, the high court accepted discretionary jurisdiction over a challenge to a Fourth District Court of Appeal ruling against a homeowner seeking legal fees under the reciprocity provision in state law.
“This is all coming to a head,” said foreclosure defense attorney Roy Oppenheim, whose firm will ask to file an amicus curiae or “friend of the court” brief in the pending case. “The bottom line is this is very complicated, and it’s becoming a major issue.”
The dispute before the Florida Supreme Court pits borrower Marie Ann Glass against Nationstar Mortgage LLC, doing business as Champion Mortgage Co. It came to the high court from the Fourth DCA, where the lender challenged Broward Senior Circuit Judge Joel T. Lazarus’ dismissal with prejudice of its amended foreclosure complaint.
Nationstar sought to foreclose on Glass’ reverse mortgage on claims the borrower defaulted on the contract by failing to meet key requirements — not paying taxes and maintaining homeowner insurance on the property. Glass raised several defenses, including arguments that Nationstar lacked standing to foreclose on her debt and the line of equity from the reverse mortgage should have covered taxes and insurance expenses.
On appeal, Nationstar filed a notice of voluntary dismissal, leaving Glass to claim she was the prevailing party and eligible to recoup appellate legal fees from the financial institution that launched the legal action against her.
Glass argued Florida Statute Section 57.105(7) allowed for reciprocity, permitting borrowers to collect legal fees under contracts that make the provision only for lenders. But the state appellate court ruled against her, finding her own arguments shielded the Nationstar.
To continue go here.
Filed under: foreclosure |
The alternative means, as I stated below, are in subparts (1), and (2), of the statute.
William Peterson,
As a layman, I can’t understand for the life of me, how 6 big banks and their servicers and their attorneys can sue me, all knowing that they don’t have standing and fabricated dozens of documents, and when I win, I can’t recoup my attorneys fees.
Why is that “having it both ways” and what are the “alternative ways” to recoup my attorney fees in Florida?
Thank you in advance!
This probably isn’t going to end the way aggrieved counsel are hoping.
A read of the operative statute indicates, as the 4th DCA has stated, that in these circumstances sub (7) is not the proper vehicle for recouping costs/fees as prevailing party.
You can’t have it both ways, 1) arguing THEY can’t enforce the contract against us, and 2) WE can enforce the contract against them.
The statute provides for other means of recoupment of costs/fees, in subs (1), and (2). Why those alternative means were not utilized I can’t say.
Roy Oppenheim is certainly deserving of props in foreclosure defense, but I think he, et. al., have missed the mark on this one.