FREDERICK SABIDO and JONELLE SABIDO v. THE BANK OF NEW YORK MELLON, ETC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

FREDERICK SABIDO and JONELLE SABIDO,
Appellants,

v.

THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK,
SUCCESSOR TO JP MORGAN CHASE BANK, NATIONAL
ASSOCIATION, AS TRUSTEE FOR CWALT, INC., ALTERNATIVE LOAN
TRUST 2007-J1, L’HERMITAGE COMMUNITY ASSOCIATION, INC.,
and CITIBANK,N.A.,
Appellees.

No. 4D16-2944

[February 7, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry Stone, Senior Judge; L.T. Case No. CACE 14-
008945.

Roy D. Oppenheim, Geoffrey E. Sherman, Jacquelyn Trask, and Yanina
Zilberman of Oppenheim Pilelsky, P.A., Weston, for appellants.

Elliot B. Kula, W. Aaron Daniel, and William D. Mueller of Kula &
Associates, P.A., Miami, for appellee, The Bank of New York Mellon.

ON MOTION FOR CLARIFICATION AND RECONSIDERATION

GROSS, J.

The borrowers move for clarification and reconsideration of our order
denying their motion for appellate attorney’s fees. We grant the motion for
clarification and deny the motion for reconsideration, holding that where
the plaintiff bank failed to comply with the requirements of the lost note
statute, requiring the dismissal of their mortgage foreclosure case, the
borrowers are not entitled to recover attorney’s fees under the terms of the
mortgage to which the plaintiff bank was not a signatory.

Prior to disposition of the underlying appeal, the borrowers timely
moved for appellate attorney’s fees, citing as their basis for entitlement
Florida Statute section 57.105(7) together with language in the mortgage
providing for fees to the lender in the event of the borrowers’ default.

In the underlying appeal, we reversed the trial court’s final judgment of
foreclosure, finding that the plaintiff, the Bank of New York Mellon, failed
to establish its entitlement to enforce the note under the lost note statute.
Sabido v. Bank of New York Mellon, No. 4D16-2944, 2017 WL 6506443
(Fla. 4th DCA December 20, 2017). While the borrowers prevailed on
appeal, we issued a separate order summarily denying their motion for
attorney’s fees.

To clarify, the borrowers’ motion for fees was based on a contract ― the
mortgage ― between the borrowers and Washington Mutual, not the
plaintiff in this case. The borrowers argued at trial and on appeal that the
Bank of New York Mellon was not in possession of the original note and
was not entitled to enforce it under the lost note statute. On appeal, the
borrowers prevailed on this issue.

In their motion for reconsideration, the borrowers argue that they are
entitled to enforce the attorney’s fee provision in the mortgage against the
Bank of New York Mellon. It is significant that the Bank of New York
Mellon was not a signatory to the note or the mortgage, and failed to
establish its entitlement to enforce either against the borrowers.

The borrowers interpret our holding in Nationstar Mortgage LLC v.
Glass, 219 So. 3d 896 (Fla. 4th DCA 2017) as precluding an award of
attorney’s fees to a prevailing borrower only if the borrower prevailed
because the bank failed to prove standing. Yet nothing in Glass limits the
holding to the standing issue. The holding in Glass was broader, focusing
on a failure to prove entitlement to enforce a mortgage and note:

[W]here the foreclosing plaintiff does not establish its right to
enforce the mortgage note at the time of filing of the suit, there
is no ability to enforce the terms of the note, including the
provision regarding attorney’s fees.

Simply put, to be entitled to fees . . . the movant must
establish that the parties to the suit are also entitled to enforce
the contract containing the fee provision.

Id. at 898, 899 (emphasis added).

Here, the borrowers successfully argued that the Bank of New York
Mellon failed to establish its entitlement to enforce the note and mortgage.

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“[W]here a party prevails by arguing the plaintiff failed to establish it had
the right pursuant to the contract to bring the action, the party cannot
simultaneously seek to take advantage of a fee provision in that same
contract.” Id. at 898.

The borrowers’ motion for fees is denied because the Bank of New York
Mellon was not a party to the note and mortgage, and because the
borrowers successfully argued that the Bank of New York Mellon was not
entitled to enforce the instrument containing the attorney fee provision.

Motion for clarification granted; motion for reconsideration denied.

MAY and KLINGENSMITH, JJ., concur.

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