This article completes the series begun here on October 6, 2020.
(InsideFlorida.org)
There was a mortgage contract at issue in the case of Madl v. Wells Fargo Bank, N.A.[1] The fact that a mortgage contract was in dispute, was not itself in dispute. There was obviously a dispute, but it was not about the central contract at issue, the plaintiffs' mortgage. The case instead was about standing to bring the lawsuit to enforce that contract.
In a unanimous opinion in this case, Florida's Fifth District Court of Appeal applied the language of Section 57.105(7). "Section 57.105(7) transforms a unilateral right into a reciprocal right so that all parties to the contract are entitled to recover attorney’s fees upon prevailing."[2] The appellate panel awarded appellate attorney's fees to the homeowners who prevailed in this action to enforce the mortgage contract against them.
As the Fifth District itself pointed out,[3] there is authority from the Fourth District which appears to stand to the contrary.
It is not clear that the Fourth District in a proper case would outright refuse to apply the express wording of of Section 57.105(7) in mortgage cases. What can safely be said is that some Fourth District cases seem to involve disputes about whether the parties before the court were all parties to the contract, or even whether the contracts at issue were proven to exist in the first place. In Madl, there was no dispute but that the appellants and the appellees were parties to the mortgage contract that existed in that case.
To the extent that there is a conflict among the district courts of appeal in Florida, it will likely be decided by the Supreme Court of Florida.
Attorney's fees are discussed in §§ 13:12 through 13:14 in 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).
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[1] Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) & on rehearing (Fla. 5th DCA 2018), review dismissed, No. SC18-966, 2019 WL 5963521 (Fla. 2019).
[2] Madl, 244 So. 3d at 1138.
[3] Madl, 244 So. 3d at 1139.
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