DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SARAH BLYTH and JOSEPH GUARACINO,
Appellants,
v.
OCWEN LOAN SERVICING, LLC,
Appellee.
No. 4D20-537
[August 18, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. CACE 14-
6149(11).
F. Scott Fistel of the Fistel Law Group, P.A., Fort Lauderdale, for
appellants.
Adam G. Schwartz of Fox McCluskey Bush Robison PLLC, Stuart, for
appellee.
PER CURIAM.
Appellants challenge the trial court’s order denying their entitlement to
attorney’s fees after they prevailed in appellee’s foreclosure action against
them on the grounds that appellee did not have standing to foreclose under
the mortgage and note. We reverse on the authority of Page v. Deutsche
Bank Trust Co. Americas, 308 So. 3d 953 (Fla. 2020).
In Page, the court construed section 57.105(7), Florida Statutes (2019),
which allows for a reciprocal award of prevailing party attorney’s fees. The
statute requires in the first clause “the existence of ‘a contract [that]
contains a provision allowing attorney’s fees to a party when he or she is
required to take any action to enforce the contract.’” Id. at 959 (citing §
57.105(7), Fla. Stat.). And “the statutory language [of section 57.105(7)]
also requires that the plaintiff and defendant not be strangers to the
contract.” Id. The statute requires in the second clause that the party
must prevail. Id.
Here, the mortgage and note upon which appellee filed suit to foreclose
contained an attorney’s fees provision. Appellants prevailed in the action
when appellee, who obtained its position by assignment, failed to prove
standing.
Moreover, the parties in this case are not strangers to the contract.
While appellee claims that it was not a party to the note, because it was
never assigned the note, it sued on both the note and mortgage and
represented in its complaint that it was entitled to enforce the note and
held the note. It also sought to establish a lost note, stating that it had
acquired the note. Both the note and mortgage contained an attorney’s
fee provision. Even if appellee had not been assigned the note, appellants
would still be entitled to fees under section 57.105(7), because of the fee
provision in the mortgage. See Madl v. Wells Fargo Bank, N.A., 244 So. 3d
1134 (Fla. 5th DCA 2017), and Harris v. Bank of N.Y. Mellon, 311 So. 3d
66 (Fla. 2d DCA 2018), approved in Page, 308 So. 2d at 961. Pursuant to
Page, appellants are entitled to their prevailing party attorney’s fees.
Reversed and remanded for further proceedings.
CONNER, C.J., WARNER and GROSS, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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