Fourth District Denies Attorney’s Fees to Homeowners in Foreclosure Case

Sabido v. The Bank of N.Y. Mellon, 43 Fla. L. Weekly D305 (Fla. 3d DCA 2018)

In Sabido, the Fourth District granted a motion for clarification and denied a motion for reconsideration, to recover attorney’s fees in a foreclosure case.

After the trial court entered a final judgment in favor of the lender, the homeowners appealed, claiming that the lender failed to establish its rights to enforce the note under the lost note statute. Under the lost note statute, the lender must either prove they are the holder of the note or have the right to enforce the note.

The Fourth District agreed with the homeowners and reversed the final judgment. Additionally, the trial court was directed to dismiss the foreclosure case. A separate order was issued by the Fourth District denying the homeowners attorney’s fees under the terms of the mortgage. The homeowners then sought clarification and reconsideration of the separate order entered by the Fourth District on the attorney’s fees.

The homeowners argued in their motion that they should recover attorney’s fees since there is an attorney’s fee provision in their mortgage contract. The Fourth District has held that a prerequisite to recovering fees is an enforceable note and mortgage. The trial court previously established that the mortgage and note were signed by the original lenders, Washington Mutual and transferred to The Bank of N.Y. Mellon. The Bank of N.Y. Mellon was required to sign the mortgage and note to be entitled to enforce them. Because Bank of N.Y. Mellon did not sign the mortgage or note, the Bank lost the right to enforce the instruments. Since it was already established that the lender lacked the ability to enforce the mortgage, the fee provision was also unenforceable. Therefore, the Fourth District denied the motion for reconsideration to recover attorney’s fees.

While lenders and homeowners have competing interests in foreclosure cases, both parties require competent legal counsel to avoid or minimize the consequences raised in this case or similar matters. Having the right counsel to guide you through the legal process, while making sure your rights are protected is essential. If you need to commence or defend a foreclosure action, the lawyers at Kahn & Resnik, P.L. have the experience and skill to represent your interests. We proudly serve all of Florida and will fully represent your legal needs. Call us now at 954-321-0176 to set up a consultation.