Preview
Filing # 120193386 E-Filed 01/25/2021 04:12:29 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
THE BANK OF NEW YORK MELLON
TRUST COMPANY, NATIONAL
ASSOCIATION F/K/A THE BANK OF
NEW YORK TRUST COMPANY, N.A. AS
SUCCESSOR TO JPMORGAN CHASE
BANK N.A. AS TRUSTEE FOR RAMP
2005RZ3,
CASE NO.: 09-CA-006462-MF
Plaintiff,
v.
ERIC SANTIAGO, ET AL.
Defendants.
/
DEFENDANTS MOTION FOR AWARD OF ATTORNEY’S FEES AND COSTS
Defendant Eric Santiago (hereinafter “Defendant”), by and through undersigned counsel
and pursuant to Fla. R. Civ. P. , Fla. Stat., and the underlying contracts, moves the Court to award
him his reasonably incurred attorney fees and costs against The Bank of New York Trust Company,
N.A. as Successor to JPMorgan Chase Bank N.A. as Trustee for RAMP 2005RZ3 (hereinafter
“Plaintiff’). In support thereof, Defendant alleges:
FACTS
1 This is an action for foreclosure of residential real property owned by Defendant.
2. The case was voluntarily dismissed on January 12, 2021.
3. Both the subject promissory note and mortgage at issue in this action would have permitted
Plaintiff to recover its attorney’s fees and costs had it prevailed in this matter.
4. Consequently, because Defendant is the prevailing party, he is entitled to his attorney’s fees
and costs incurred in this matter.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION
a Legal Standards
5. It is not necessary for there to be an adjudication on the merits in order to be entitled to fees
as a prevailing party. See eg. Baratta v. Valley Oak Homeowners’ Association at the Vineyards, Inc.,
891 So. 2d 1063 (Fla. 2d DCA 2004); Valcarcel v. Chase Bank, USA, 54 So. 3d 989 (Fla. 4th DCA
2010).
6. Fla. Stat. §57.105(7) provides that
[i]f a contract contains a provision allowing attorney’s fees to a party when he
or she is required to take any action to enforce the contract, the court may
also allow reasonable attorney’s fees to the other party when that party
prevails in any action, whether as plaintiff or defendant, with respect to the
contract. This subsection applies to any contract entered into on or after October 1,
1988.
(Emphasis added).
7. The intent of § 57.105(7) is to provide mutuality of attorney’s fees as a remedy in contract
cases. See Lanahan Lumber Co., Inc. v. McDevitt & Street Company, 611 So. 2d 591, n. 1 (Fla. 4th
DCA 1993); Inc. v. Publi Man: ment, Inc., 582 So. 2d 87 (Fla. 3d DCA
1991).
8. Despite the statute’s use of the word “may” regarding the trial court’s authority to award
attorney’s fees to the prevailing party, once the court has made the prevailing party determination,
the award is mandatory. See Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So 3d 893,
n.d (Fla. 2d DCA 2010); Holiday Square Owners Association, Inc. v. Tsetsenis, 820 So. 2d 450, 453
(Fla. 5th DCA 2002); ntrywi Home L ns, Inc., 731 So. 2d 137 (Fla. 1st DCA
1999).
9. In Bank of N.Y. v. Williams, 979 So. 2d 347 (Fla. 1st DCA 2008), the First District affirmed
a trial court award of attorney’s fees to the prevailing borrower/defendant of a foreclosure action
based upon provisions of the mortgage which allowed the lender/plaintiff to recover such fees.
10. Moreover, in Nudel v. Flagstar, 60 So. 3d 1163 (Fla. 4th DCA 2011), Flagstar sued Nudel to
foreclose a mortgage. Id at 1164. Clause 22 of the mortgage provided that Flagstar, as “lender”,
would be “entitled to reasonable attorney’s fees and costs in foreclosure proceedings.” Id. The trial
court thereafter involuntary dismissed Flagstar’s action but denied Nudel’s Motion for Attorney’s
Fees and Costs. Id.
11. The Fourth District reversed the trial court’s ruling as to attorney’s fees, holding that
Nudel was entitled to recover her attorney’s fees. The mortgage between Nudel
and Flagstar entitled Flagstar to reasonable attorney’s fees for enforcement. By
operation of subsection 57.105(7), the contractual provision allows attorney’s
fees to Nudel if she is the prevailing party.
Id. Bold emphasis added. See also |.P. Morgan Mortgage Acquisition Corporation v. Golden, 98 So. 3d
220 (Fla. 2d DCA 2012) (affirming award of attorney’s fees and costs to mortgagor/defendant under
§57.105(7) where mortgage and promissory note the mortgage secures would have permitted
mortgagee/ plaintiff recovery of such fees and costs.)
12. Finally, a mortgagor/defendant is entitled to recover fees and costs under a promissory note
and mortgage even if enforcement of the note is barred by the mortgagee/plaintiff. Spencer v.
EMC, 97 So. 3d 257, n.4 (Fla. 3d DCA 2012).
b. Argument
13. Here, the dismissal made Defendant the prevailing party to the lawsuit and therefore entitled
to an award of attorney’s fees if authorized by either statue or contract.
14. The contracts sued upon would have allowed Plaintiff to recover prevailing attorney’s fees if
it had prevailed in this action.
15. Utilizing the bi-lateral provisions of Fla. Stat. §57.105(7), it is inherently apparent that the
subject note and mortgage demands that the Plaintiff pay the Defendant's attorney’s fees and costs.
16. Therefore, Defendant is entitled to an award of his reasonable incurred attorney’s fees and
costs incurred in this action.
WHEREFORE, based upon the foregoing, Defendant respectfully requests this Court
award his reasonably incurred attorney’s fees and costs pursuant to Fla. Stat. §57.105(7) and the
subject loan documents for those fees so wrongfully incurred by the necessity of defense, and any
other relief the Court deems just and proper.
CERTIFICATE OF SERVICE AND FILING
IT HEREBY CERTIFY that a true and correct copy of the foregoing was served this January
25, 2021 to all parties on the attached service list. Service was by email to all parties not exempt
from Rule 2.516 Fla. R. Jud. Admin. at the indicated email address on the service list, and by U.S.
Mail to any other parties.
Weidner Law, P.A.
Counsel for Defendant(s)
250 Mirror Lake Dr., N.
St. Petersburg, FL 33701
Telephone: (727) 954-8752
Desi nated Email for Se IVt vice:
:
servi a wr idin law om.
By MDW,
Matthew D. Weidner, Esq.
Florida Bar No. 0185957
SERVICE LIST
Patrick G. Broderick, Esq., Eric Reichenberger, Esq.,
Greenberg Traurig, P.A., Aldridge | Pite, LLC,
777 South Flagler Dr., Suite 300 East, 1615 S. Congress Ave., Suite 200,
West Palm Beach, FL 33401 Delray Beach, FL 33445
broderickp@gtlaw.com ereichenberger@aldridgepite.com
sandra.famadas@gtlaw.com efiling@aldridgepite.com
FLservice@gtlaw.com
Scott Kiernan, Esq.,
Becker & Poliakoff, P.A.,
111 N. Orange Ave, Suite 1400,
Orlando, FL 32801
ALTservicemail@bplegal.com
skiernan@bplegal.com
kmurphy@bplegal.com
Preview
Filing # 120193386 E-Filed 01/25/2021 04:12:29 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION F/K/A THE BANK OF NEW YORK TRUST COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK N.A. AS TRUSTEE FOR RAMP 2005RZ3, CASE NO.: 09-CA-006462-MF Plaintiff, v. ERIC SANTIAGO, ET AL. Defendants. / DEFENDANTS MOTION FOR AWARD OF ATTORNEY’S FEES AND COSTS Defendant Eric Santiago (hereinafter “Defendant”), by and through undersigned counsel and pursuant to Fla. R. Civ. P. , Fla. Stat., and the underlying contracts, moves the Court to award him his reasonably incurred attorney fees and costs against The Bank of New York Trust Company, N.A. as Successor to JPMorgan Chase Bank N.A. as Trustee for RAMP 2005RZ3 (hereinafter “Plaintiff’). In support thereof, Defendant alleges: FACTS 1 This is an action for foreclosure of residential real property owned by Defendant. 2. The case was voluntarily dismissed on January 12, 2021. 3. Both the subject promissory note and mortgage at issue in this action would have permitted Plaintiff to recover its attorney’s fees and costs had it prevailed in this matter. 4. Consequently, because Defendant is the prevailing party, he is entitled to his attorney’s fees and costs incurred in this matter. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION a Legal Standards 5. It is not necessary for there to be an adjudication on the merits in order to be entitled to fees as a prevailing party. See eg. Baratta v. Valley Oak Homeowners’ Association at the Vineyards, Inc., 891 So. 2d 1063 (Fla. 2d DCA 2004); Valcarcel v. Chase Bank, USA, 54 So. 3d 989 (Fla. 4th DCA 2010). 6. Fla. Stat. §57.105(7) provides that [i]f a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988. (Emphasis added). 7. The intent of § 57.105(7) is to provide mutuality of attorney’s fees as a remedy in contract cases. See Lanahan Lumber Co., Inc. v. McDevitt & Street Company, 611 So. 2d 591, n. 1 (Fla. 4th DCA 1993); Inc. v. Publi Man: ment, Inc., 582 So. 2d 87 (Fla. 3d DCA 1991). 8. Despite the statute’s use of the word “may” regarding the trial court’s authority to award attorney’s fees to the prevailing party, once the court has made the prevailing party determination, the award is mandatory. See Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So 3d 893, n.d (Fla. 2d DCA 2010); Holiday Square Owners Association, Inc. v. Tsetsenis, 820 So. 2d 450, 453 (Fla. 5th DCA 2002); ntrywi Home L ns, Inc., 731 So. 2d 137 (Fla. 1st DCA 1999). 9. In Bank of N.Y. v. Williams, 979 So. 2d 347 (Fla. 1st DCA 2008), the First District affirmed a trial court award of attorney’s fees to the prevailing borrower/defendant of a foreclosure action based upon provisions of the mortgage which allowed the lender/plaintiff to recover such fees. 10. Moreover, in Nudel v. Flagstar, 60 So. 3d 1163 (Fla. 4th DCA 2011), Flagstar sued Nudel to foreclose a mortgage. Id at 1164. Clause 22 of the mortgage provided that Flagstar, as “lender”, would be “entitled to reasonable attorney’s fees and costs in foreclosure proceedings.” Id. The trial court thereafter involuntary dismissed Flagstar’s action but denied Nudel’s Motion for Attorney’s Fees and Costs. Id. 11. The Fourth District reversed the trial court’s ruling as to attorney’s fees, holding that Nudel was entitled to recover her attorney’s fees. The mortgage between Nudel and Flagstar entitled Flagstar to reasonable attorney’s fees for enforcement. By operation of subsection 57.105(7), the contractual provision allows attorney’s fees to Nudel if she is the prevailing party. Id. Bold emphasis added. See also |.P. Morgan Mortgage Acquisition Corporation v. Golden, 98 So. 3d 220 (Fla. 2d DCA 2012) (affirming award of attorney’s fees and costs to mortgagor/defendant under §57.105(7) where mortgage and promissory note the mortgage secures would have permitted mortgagee/ plaintiff recovery of such fees and costs.) 12. Finally, a mortgagor/defendant is entitled to recover fees and costs under a promissory note and mortgage even if enforcement of the note is barred by the mortgagee/plaintiff. Spencer v. EMC, 97 So. 3d 257, n.4 (Fla. 3d DCA 2012). b. Argument 13. Here, the dismissal made Defendant the prevailing party to the lawsuit and therefore entitled to an award of attorney’s fees if authorized by either statue or contract. 14. The contracts sued upon would have allowed Plaintiff to recover prevailing attorney’s fees if it had prevailed in this action. 15. Utilizing the bi-lateral provisions of Fla. Stat. §57.105(7), it is inherently apparent that the subject note and mortgage demands that the Plaintiff pay the Defendant's attorney’s fees and costs. 16. Therefore, Defendant is entitled to an award of his reasonable incurred attorney’s fees and costs incurred in this action. WHEREFORE, based upon the foregoing, Defendant respectfully requests this Court award his reasonably incurred attorney’s fees and costs pursuant to Fla. Stat. §57.105(7) and the subject loan documents for those fees so wrongfully incurred by the necessity of defense, and any other relief the Court deems just and proper. CERTIFICATE OF SERVICE AND FILING IT HEREBY CERTIFY that a true and correct copy of the foregoing was served this January 25, 2021 to all parties on the attached service list. Service was by email to all parties not exempt from Rule 2.516 Fla. R. Jud. Admin. at the indicated email address on the service list, and by U.S. Mail to any other parties. Weidner Law, P.A. Counsel for Defendant(s) 250 Mirror Lake Dr., N. St. Petersburg, FL 33701 Telephone: (727) 954-8752 Desi nated Email for Se IVt vice: : servi a wr idin law om. By MDW, Matthew D. Weidner, Esq. Florida Bar No. 0185957 SERVICE LIST Patrick G. Broderick, Esq., Eric Reichenberger, Esq., Greenberg Traurig, P.A., Aldridge | Pite, LLC, 777 South Flagler Dr., Suite 300 East, 1615 S. Congress Ave., Suite 200, West Palm Beach, FL 33401 Delray Beach, FL 33445 broderickp@gtlaw.com ereichenberger@aldridgepite.com sandra.famadas@gtlaw.com efiling@aldridgepite.com FLservice@gtlaw.com Scott Kiernan, Esq., Becker & Poliakoff, P.A., 111 N. Orange Ave, Suite 1400, Orlando, FL 32801 ALTservicemail@bplegal.com skiernan@bplegal.com kmurphy@bplegal.com