DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL R. MAISONNEUVE and CYNTHIA A. MAISONNEUVE,
Appellants,
v.
SITUS INVESTMENTS, LLC, a Pennsylvania limited liability company,
Appellee.
No. 4D20-2397
[August 18, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Elizabeth A. Metzger, Judge; L.T. Case No.
562018CA001376AXXXXHC.
Michael Vater and Kendrick Almaguer of The Ticktin Law Group,
Deerfield Beach, for appellants.
Loretta Comiskey O’Keeffe of Gibbons | Neuman, Tampa, for appellee.
WARNER, J.
The trial court denied attorney’s fees and costs to
appellants/mortgagors who prevailed against the appellee/mortgagee in a
foreclosure action. Because the mortgagors proved that the contract
existed between the parties, although unenforceable, and the mortgagors
were the prevailing parties, they were entitled to attorney’s fees and costs.
We reverse and remand for further proceedings.
In 2001, mortgagors executed a mortgage and promissory note with the
original lender, GMAC Mortgage Corporation. Both the mortgage and the
promissory note provided for attorney’s fees. The mortgage was ultimately
assigned multiple times before being assigned to appellee Situs
Investments, LLC (mortgagee). In July 2018, mortgagee filed a verified
complaint for foreclosure, with the note and mortgage attached.
Mortgagors answered, alleging as an affirmative defense that the statute
of limitations prevented the enforcement of the mortgage. The note
provided for payments for ten years, with a balloon payment due in 2011.
No further payments were due. The mortgagee was required to sue to
foreclose within five years of the date of the last payment required under
the mortgage. See § 95.11(2)(c), Fla. Stat. (2011). Ultimately, the trial
court ruled on summary judgment that the contract was unenforceable
due to the statute of limitations. Mortgagors then moved for attorney’s
fees and costs, pursuant to the attorney’s fees provision in the mortgage
and note, as well as section 57.105(7), Florida Statutes. The trial court
denied fees based on Deutsche Bank Trust Co. Americas v. Page,
274 So.
3d 1116 (Fla. 4th DCA 2019), and Nationstar Mortgage LLC v. Glass,
219
So. 3d 896 (Fla. 4th DCA 2017). The mortgagors appeal that ruling.
In Page v. Deutsche Bank Trust Co. Americas,
308 So. 3d 953 (Fla.
2020), the supreme court quashed our decision in Page and abrogated the
decision in Glass. Both decisions held that where the mortgagor prevails
by proving that the foreclosing plaintiff did not have standing to bring the
foreclosure action, the mortgagor was not entitled to attorney’s fees
pursuant to section 57.105(7), and the mortgage contract. We had
reasoned that where a party prevails by showing that the plaintiff had no
right to foreclose under the contract, the mortgagor could not take
advantage of the same contract to obtain attorney’s fees.
Interpreting section 57.105(7), the supreme court in Page held that the
statute contains two clauses: first, there must be a contract which
contains a fee provision, and second, a party must prevail in an action
with respect to the contract. Id. at 959. Based on the facts, the court
concluded that it was undisputed that the mortgage contract contained an
attorney’s fees provision, thus satisfying the first clause. Also, there was
no question that the mortgagor had prevailed in the action with respect to
the contract when the court dismissed the case for lack of standing,
thereby satisfying the second clause. Id.
Applying Page to this case, it is undisputed that a contract existed
between the parties, which contract was assigned to the foreclosing party.
Second, the mortgagors prevailed in an action with respect to the contract.
Therefore, the mortgagors were entitled to attorney’s fees pursuant to
section 57.105(7).
That the trial court declared the mortgage unenforceable because of the
statute of limitations does not change the result. In Katz v. Van Der Noord,
546 So. 2d 1047, 1049 (Fla. 1989), the Florida Supreme Court held that
for the purpose of determining whether an award of attorney’s fees is
proper under a contract’s prevailing party fee provision, “[t]he distinction
between no contract at all and one that is unenforceable makes all the
difference . . . .”
Id. at 1049 (quoting Leitman v. Boone,
439 So. 2d 318,
320 (Fla. 3d DCA 1983)). Relying on Katz, we later held that “[w]hen
parties enter into a contract and litigation later arises out of the contract,
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the prevailing party may recover attorney’s fees under a prevailing party
attorney’s fee provision, even though the contract is rescinded or rendered
unenforceable by some subsequent act.” Tarr v. Honea,
959 So. 2d 780,
781 (Fla. 4th DCA 2007) (citing Katz,
546 So. 2d at 1049). Here, the
contract existed. The fact that it was determined to be unenforceable does
not prevent mortgagors from recovering attorney’s fees pursuant to its
provisions when they prevailed on the action with respect to the contract.
For the foregoing reasons, we reverse and remand for further
proceedings to award the mortgagors their attorney’s fees and costs.
CONNER, C.J., and GROSS, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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