Memorable mortgage case was really an outgrowth of an observation that I had made. Our firm for quite some time was representing on the lender and the note holder side mortgage companies, and often in disputes with borrowers that became contested. And what we were seeing is one of the defenses that was commonly raised, here in Florida anyway by borrowers, was a question of standing. These notes and mortgages often got sold many, many times – multiple times before the person who was, the current holder was taxed with enforcing a mortgage that was in default.

What became a common defense that the borrower’s bar raised in these cases is prove to us that you actually are the one who is entitled to enforce this note and mortgage, because the originator of the loan may have been ABC Corp, the but ultimate mortgage company that was seeking to enforce it was went by another name. These mortgages have attorney’s fees proficient that purports to give the mortgage company the right to get attorney’s fees when they’re successful in litigation against their borrower.

Florida has a statue that provides that if any contract gives one party the right to attorney’s fees if they prevail, the other party to the contract can also seek fees if they prevail in the litigation. So what was happening is when these defenses by borrowers for lack of standing, which essentially means you haven’t proven that you’re the party to this mortgage that you’re seeking to enforce. When they won in those cases they were relying on that Florida statute to recover their fees in defending against these cases. And the mortgage companies were paying them, really without objection for a long period of time.

We had been urging our clients in this industry to give some real thought to that because it occurred to us that if the borrower is successful in proving that the mortgage company couldn’t enforce the note and mortgage because they didn’t have standing, they weren’t a party to that note and mortgage, how could the borrower turn around and get fees from that same note and mortgage that they had successfully argued our clients weren’t a part of? And we finally got a client who says, you know, we understand and appreciate that logic. We’re going to support you making that argument on our behalf. We did it before the trial court. The trial courts were not accustomed to awarding attorney’s fees, or to denying attorney’s fees to borrowers in these situations.

And we had to go up to the third district court of appeal and they found our arguments persuasive. And it really changed the landscape of mortgage litigation in Florida, where it saved a lot of the industry paying needlessly countless amounts of attorney’s fees when they were unsuccessful in mortgage foreclosure. So that was an interesting case to work on, and we were appreciative of the client for supporting the idea that we brought to them and allowing us to make good law for their industry in the state of Florida.