               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


JOHN W. HOPSON,                          )
                                         )
             Appellant,                  )
                                         )
v.                                       )             Case No. 2D18-673
                                         )
DEUTSCHE BANK NATIONAL                   )
TRUST COMPANY, as Indenture              )
Trustee for New Century Home             )
Equity Loan Trust 2005-2,                )
                                         )
              Appellee.                  )
                                         )

Opinion filed August 28, 2019.

Appeal from the Circuit Court for
Pinellas County; John A. Schaefer,
Judge.

Robert E. Biasotti of Biasotti Law,
St. Petersburg, for Appellant.

Morgan L. Weinstein of Van Ness Law
Firm, Deerfield Beach, for Appellee.


ATKINSON, Judge.


              John W. Hopson appeals the trial court's order denying him attorney's fees

pursuant to section 57.105(7), Florida Statutes (2018), in the foreclosure action brought

against him by Deutsche Bank National Trust Company, as Indenture Trustee for New
Century Home Equity Loan Trust 2005-2 (Deutsche Bank). Because Hopson could not

establish that Deutsche Bank was a party to the contract that contained the attorney's

fees provision, we affirm.

              On March 14, 2005, Hopson executed and delivered to Mortgage

Approval Services, Inc. (MAS), the original lender, a note and mortgage, in the principal

amount of $175,000. Hopson defaulted on the note and mortgage by failing to make

the payment due on September 1, 2006, and all payments thereafter. Deutsche Bank

filed a foreclosure action against Hopson to foreclose the mortgage and for

reestablishment of the lost note and mortgage, which Deutsche Bank alleged had been

lost or destroyed after its acquisition of the note and mortgage. Attached to the

complaint were copies of the mortgage and note, which contained no endorsements or

allonges. Deutsche Bank alleged that MAS assigned the note and mortgage to

Deutsche Bank in an Assignment of Mortgage (Assignment) dated January 1, 2007. A

copy of the Assignment was attached to the complaint. The Assignment was executed

by New Century Mortgage Corporation (New Century) as attorney-in-fact for MAS.

              In its third amended complaint, Deutsche Bank alleged that it "took

assignment by a Mortgage Loan Purchase Agreement series 2005-2 dated as of April

22, 2005" and included the following attachments: a copy of a Mortgage Loan Purchase

Agreement and a limited power of attorney between Deutsche Bank and Carrington

Mortgage Services, LLC (Carrington), as successor servicer to New Century. Hopson

filed a motion to dismiss, alleging that Deutsche Bank lacked standing because the

record was clear from Deutsche Bank's "allegations and from the exhibits attached to

the complaint that a person other than [Deutsche Bank] may be the true owner of the




                                           -2-
claim sued upon and that [Deutsche Bank] is not the real party in interest and is not

shown to be authorized to maintain this foreclosure action." Hopson specifically

contested the validity of the Assignment. The trial court denied Hopson's motion.

              At the ensuing bench trial, Deutsche Bank's sole witness was a default

litigation and mediation supervisor for Carrington, who testified that Carrington

purchased New Century after New Century went into bankruptcy. Various documents

were admitted through that testimony, including the following: a limited power of

attorney, in which Deutsche Bank appointed Carrington as successor servicer to New

Century; the note made payable to MAS without any indorsements or allonges; a copy

of the mortgage issued from Hopson to MAS; and a copy of the Assignment dated

January 1, 2007, assigning the note and mortgage from New Century as attorney-in-fact

for MAS to Deutsche Bank.

              Hopson moved for an involuntary dismissal, arguing that Deutsche Bank

failed to prove standing at inception and at trial. Relying on Bonafide Properties, LLC v.

E-Trade Bank, 208 So. 3d 1279 (Fla. 5th DCA 2017), counsel for Hopson contended

that Deutsche Bank's "assignment [was] insufficient" because there was no evidence

that New Century was the attorney-in-fact for MAS: "If there was an endorsement on

the lost Note, we'd have a different story. But all you have in order for them to establish

their standing is they're relying on a fraudulent assignment of Mortgage."

              On June 30, 2017, the trial court entered a final judgment in favor of

Hopson:

              3. [Deutsche Bank] failed to introduce any testimony or
              evidence about New Century['s] . . . ability to assign the note
              and mortgage to [Deutsche Bank] and [MAS'] granting of a
              power of attorney.



                                           -3-
              4. The Court finds that [Deutsche Bank] failed to prove the
              elements of standing in this case as [Deutsche Bank] failed
              to explain the lack of endorsements or allonges on the lost
              note, and the power of attorney relationship of [New Century]
              as attorney in fact for [MAS] on the assignment of mortgage,
              pursuant to Bonafide Properties, LLC v. E-Trade Bank, 208
              So. 3d 1279, 1281 (Fla. 5th DCA 2017).

The trial court awarded Hopson his reasonable attorney's fees and costs and reserved

jurisdiction to determine the amount.

              Deutsche Bank then filed a motion for rehearing regarding Hopson's

entitlement to attorney's fees, arguing that Hopson was not entitled to fees on the basis

of a contract that he claimed never existed between him and Deutsche Bank. The trial

court granted Deutsche Bank's motion and held that Hopson, "who prevailed at trial on

the argument that [Deutsche Bank] lacked standing upon the contract at issue, cannot

recover fees based on a provision in that same contract."

              A trial court's order on attorney's fees is reviewed for an abuse of

discretion, while a trial court's interpretation of law is reviewed de novo. Santini v.

Cleveland Clinic Fla., 65 So. 3d 22, 29 (Fla. 4th DCA 2011). On appeal, Hopson argues

that the trial court erred in failing to award him prevailing party attorney's fees under

section 57.105(7), which provides the following:

              If 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.

To be entitled to attorney's fees under section 57.105(7), the movant has the burden of

proving the following: "(1) the contract provides for prevailing party fees; (2) both the



                                            -4-
movant and opponent are parties to that contract; and (3) the movant prevailed." Madl

v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1138 (Fla. 5th DCA 2017) (citing

Nationstar Mortg. LLC v. Glass, 219 So. 3d 896, 898 (Fla. 4th DCA 2017)). Here, it is

undisputed that the mortgage contract contains a provision for prevailing party fees and

that Hopson prevailed at trial. The parties dispute whether they were both parties to the

contract.

             Hopson maintained throughout trial that the assignment of the mortgage

was invalid, successfully arguing that Deutsche Bank failed to establish that New

Century was the attorney-in-fact for MAS in order to prove that the Assignment

occurred—an argument that proved fatal to Deutsche Bank's right to foreclose. This

same argument was fatal to Hopson's attempt to establish that he was entitled to

attorney's fees pursuant to a provision in that mortgage. Hopson prevailed on the basis

that Deutsche Bank never became a party to the mortgage by virtue of the assignment,

foreclosing his argument that Deutsche Bank was a party to "a contract contain[ing] a

provision allowing attorneys' fees to a party when he or she is required to take any

action to enforce the contract." See § 57.105(7).

             Other courts have concluded that a foreclosure defendant cannot

establish entitlement to fees based on section 57.105(7) if it successfully defended

against foreclosure based on a theory that the plaintiff lacked standing. See, e.g.,

Deutsche Bank Tr. Co. Ams. v. Page, 44 Fla. L. Weekly D1479 (Fla. 4th DCA June 12,

2019) (en banc) ("NO STANDING = NO ATTORNEY'S FEES"); Glass, 219 So. 3d at

899 ("A party that prevails on its argument that dismissal is required because the

plaintiff lacked standing to sue upon the contract cannot recover fees based upon a




                                           -5-
provision in that same contract."); Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald, 215

So. 3d 116, 121 (Fla. 3d DCA 2017) ("Because [the plaintiff] successfully obtained a

judgment below that the Bank lacked standing to enforce the mortgage and note against

her, we find that no contract existed between the Bank and [the plaintiff] that would

allow [the plaintiff] to invoke the mutuality provisions of section 57.105(7)."); cf. HFC

Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114, 1117 (Fla. 5th DCA 2016) ("[The

plaintiff] cannot employ section 57.105(7) as a basis for an attorney's fees award after

she proved that HFC never became a party to the contract.").

              In Harris v. Bank of New York Mellon, 44 Fla. L. Weekly D141 (Fla. 2d

DCA Dec. 28, 2018)—asserted as supplemental authority by Hopson—this court

certified conflict with two of those decisions "to the extent that" they "hold that a party's

failure to establish standing in a mortgage foreclosure case necessarily means that no

contract existed between the parties." Id. at D143. We would be bound to follow Harris

if that decision controlled the outcome of this case, but it does not. The rationale

underlying the conclusion in Harris that the plaintiff was entitled to fees under 57.105(7)

is inapplicable to the circumstances of this case because Harris's theory of defense

differed significantly from Hopson's.

              As in this case, the plaintiff in Harris alleged that it became a party to a

mortgage by virtue of an assignment. Id. at D142. However, unlike this case, the

defendant in Harris did not impugn the validity of that assignment. Id. at D143. Instead,

admitting the existence of the contractual relationship formed by the assignment, the

defendant prevailed on a theory that the plaintiff had subsequently lost its holder status

when, prior to filing the foreclosure suit, it relinquished physical possession of the




                                             -6-
promissory note to a third party with whom it failed to prove an agency relationship.1 Id.

at D142–43. The defendant in Harris filed a motion for attorney's fees pursuant to the

fee provision in the mortgage and section 57.105(7), the trial court's denial of which was

reversed by this court. Id. at D143.

               Unlike the defendant in Harris, who "admitted the contractual relationship,"

id., Hopson successfully argued that Deutsche Bank had failed to establish a

contractual relationship with Hopson because the Assignment was invalid. In Harris,

the borrower's theory of defense allowed him to admit that the plaintiff was a party to the

note and mortgage. The borrower could concede that the plaintiff was at one time the

holder of the note and was a party to the mortgage that contained the attorney's fees

provision but could still argue that prior to the filing of the foreclosure complaint a

different entity took possession of the note, leading the trial court to conclude that the

plaintiff lacked standing at the time of inception.

               The circumstances that led this court in Harris to conclude that the

defendant could enforce the fees provision in a mortgage that the plaintiff lacked

standing to foreclose are not present in this case. Here, Hopson impugned the validity

of the assignment that would have made Deutsche Bank a party to the mortgage in the



               1In  Harris, the plaintiff alleged that it was the holder of the note it sought to
foreclose and attached to its complaint a copy of the mortgage and the note bearing a
blank indorsement, which were later admitted into evidence. Id. at D142. However, the
plaintiff's servicer testified that it, not the plaintiff, was in physical possession of the
original note at the time the foreclosure complaint was filed. Id. The borrower moved
for an involuntary dismissal, contending "that the [plaintiff] did not prove that it was the
holder of the note at inception because [the servicer] possessed the note and there was
no evidence of an agency relationship between the [plaintiff] and [the servicer]." Id.
Concluding that the plaintiff failed to prove its standing at inception, the trial court
entered a final judgment in favor of the borrower. Id.



                                              -7-
first place, foreclosing the argument that he was in privity of contract with Deutsche

Bank for the purpose of attorney's fees entitlement.

              Because Hopson could not establish that Deutsche Bank was a party to

the mortgage containing the fees provision on which Hopson relied, we affirm the trial

court's order denying Hopson attorney's fees pursuant to section 57.105(7).

              Affirmed.


SILBERMAN and LUCAS, JJ., Concur.




                                           -8-
