       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

              GEORGE P. VENEZIA and VICKY VENEZIA,
                           Appellants,

                                    v.

           JP MORGAN MORTGAGE ACQUISITION CORP.,
                         Appellee.

                             No. 4D18-1278

                           [February 6, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cymonie Rowe, Judge; L.T. Case No. 50-2014-CA-009993-
XXXX-MB.

   W. Trent Steele of Steele Law, Hobe Sound, for appellants.

   Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellee.

PER CURIAM.

    Appellants appeal an order denying their motion for attorney’s fees
following JP Morgan’s voluntary dismissal of its foreclosure action.
Because the voluntary dismissal rendered appellants the prevailing party
for purposes of attorney’s fees, we reverse.

    JP Morgan filed a foreclosure complaint against appellants. JP Morgan
alleged it was entitled to enforce the note as the holder because it had
physical possession of the note endorsed in blank. JP Morgan further
alleged it was entitled to fees under the note and mortgage. A copy of the
note attached to the complaint listed HomeBanc as the original lender and
contained an endorsement in blank by HomeBanc.

  Appellants filed an answer, raising standing as an affirmative defense.
They also asserted entitlement to attorney’s fees.

   After JP Morgan voluntarily dismissed its case without prejudice,
appellants moved for attorney’s fees pursuant to the mortgage and section
57.105(7), Florida Statutes. JP Morgan opposed the motion, arguing that
appellants could not recover fees because they denied JP Morgan was a
party to the contract rather than proving JP Morgan was a party to the
contract. During a hearing on the motion, appellants argued that “there’s
no requirement on us to prove anything against—of the plaintiff’s case.”
After the hearing, the trial court denied appellants’ motion for fees.

   “[W]e review de novo a trial court’s final judgment determining
entitlement to attorney’s fees based on a fee provision in the mortgage and
the application of section 57.105(7).” Bank of New York Mellon Tr. Co., N.A.
v. Fitzgerald, 215 So. 3d 116, 118 (Fla. 3d DCA 2017). Under section
57.105(7), unilateral attorney’s fees provisions in a contract are deemed
reciprocal. See § 57.105(7), Fla. Stat. (2018). The entitlement to fees
under section 57.105(7) applies when the party seeking fees prevails and
is a party to the contract containing the fee provision. Fla. Cmty. Bank,
N.A. v. Red Rd. Residential, LLC, 197 So. 3d 1112, 1115 (Fla. 3d DCA
2016).

   In denying the motion for fees, the trial court relied on Nationstar
Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017), quashed,
SC17-1387, 2019 WL 98152 (Fla. Jan. 4, 2019). In Glass, after the bank
voluntarily dismissed its appeal, this court denied the homeowner’s
motion for appellate attorney’s fees because she prevailed on her lack of
standing argument in the trial court.

   During the pendency of this appeal, the Florida Supreme Court
quashed Glass because a voluntary dismissal renders the opposing party
the prevailing party for purposes of appellate attorney’s fees and because
the bank maintained its right to enforce the contract in its appeal until the
dismissal. 2019 WL 98152, at *2. The supreme court found that the
determinative issue was the bank’s voluntary dismissal of the appeal, not
the homeowner’s successful dismissal of the complaint at trial. Id. at *2.
The supreme court recognized that while a party cannot recover appellate
“attorney’s fees under a contract that has been found to have never
existed,” a party can recover attorney’s fees “under a prevailing-party
attorney’s fee provision contained therein even though the contract is
rescinded or held to be unenforceable.” Id. at *4 (quoting Katz v. Van Der
Noord, 546 So. 2d 1047, 1049 (Fla. 1989)). The supreme court concluded
that a “contract clearly existed” in that case and that, even if the
homeowner prevailed on her standing argument, the contract was merely
unenforceable. Id.

    In Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153, 1154 (Fla. 4th
DCA 2018), this court held that a borrower who had raised lack of standing
as an affirmative defense was entitled to prevailing party attorney’s fees
following the bank’s voluntary dismissal. This court reasoned that

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“[s]tanding was never litigated below and the trial court never made a
finding that the bank or the borrower were not parties to the contract” and
thus, “the borrower did not prevail on his argument that dismissal was
required because the bank lacked standing to sue on the contract.” Id.
See also Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for
Stanwich Mortgage Loan Trust A, 43 Fla. L. Weekly D2742 (Fla. 4th DCA
Dec. 12, 2018) (finding that a borrower who raised lack of standing as an
affirmative defense was entitled to prevailing party attorney’s fees following
the bank’s voluntary dismissal because “the parties never litigated the
merits of [the bank’s] standing below, and the trial court never made a
finding that the Borrower was not a party to the note or mortgage”); Harris
v. Bank of New York Mellon, 44 Fla. L. Weekly D141 (Fla. 2d DCA Dec. 28,
2018) (stating that “proof of standing is not required to establish a
contractual relationship between the parties”).

    In the instant case, JP Morgan voluntarily dismissed its case and JP
Morgan alleged in its complaint that it was entitled to enforce the note and
mortgage. Significantly, there was never a judicial determination by the
trial court that JP Morgan or appellants were not a party to the contract.
Based on the foregoing authority, appellants were entitled to attorney’s
fees. We therefore reverse and remand for the trial court to grant
attorney’s fees and determine the reasonableness of the amounts sought.

   Reversed and remanded with instructions.

WARNER and LEVINE, JJ., concur.
CIKLIN, J., dissenting with opinion.

CIKLIN, J., dissenting.

   I respectfully disagree with the majority and would affirm.

   In my opinion, the borrowers not only failed to prove entitlement to fees
but went so far as to deny that they were required to offer any and all types
of proof whatsoever which I believe § 57.105 requires as a prerequisite to
being awarded reciprocal fees.

                            *          *        *

   Not final until disposition of timely filed motion for rehearing.




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