Following the 5th DCA and 3rd DCA recently discussed here, the 4th DCA in Nationstar Mortgage LLC v. Glass, No. 4D15-4561, similarly held that when a borrower successfully argues that the lender did not have standing to foreclosure, that borrower is not entitled to prevailing party attorney’s fees.
The 4th DCA used a similar rationale that if the lender had no standing to foreclose, there was not a contract between that lender and borrower. The borrower moved for attorney’s fees as the prevailing party i the lawsuit pursuant to Fla. Stat. § 57.105(7), which allows reciprocity of a one sided attorney’s fee provision in a contract; the mortgage contract provides attorney’s fees to the lender to enforce the contract.
To be entitled to attorney’s fees under Fla. Stat. § 57.105(7), the party moving to get fees must be the prevailing party and the parties to the suit must also be parties to the contract containing the fee provision. And if the named lender in the foreclosure lawsuit was not the proper lender to enforce the contract and it could not enforce the contract/mortgage and foreclosure, then the contract clause regarding attorney’s fees to the prevailing party did not apply against the named lender.