Seeking Attorney’s Fees for Wrongful Foreclosure
Mortgages often contain fee provisions that allow the lender to recover attorney’s fees in the event the lender has to bring legal action against the homeowner. The fee provisions are often one-sided, however, and provide that the lender can recover fees, but say nothing about the rights of the borrower to collect attorney’s fees if the borrower prevails in litigation.
Florida Statute 57.105(7) levels the playing field for parties to a contract dispute involving a one sided fee provision. Section 57.105(7) provides:
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. This subsection applies to any contract entered into or after October 1, 1988.
Section 57.105(7) offers homeowners with an effective tool to combat wrongful foreclosure. Sometimes lenders wrongfully foreclose on a home. When this happens, it might take months or years after the lender has commenced a foreclosure action before it realizes that it lacks a proper basis to proceed. When a lender voluntarily dismisses a foreclosure action, and the mortgage contains an attorney’s fee provision, the homeowner may be entitled to attorney’s fees under 57.105(7) as the prevailing party. See Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla. 1990)(“In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.”)
Keep in mind that Florida’s attorney fee statute “applies to any contract” under 57.105. This means that litigants, whether they are homeowners or not, when confronted with a contract containing an attorney’s fee clause, should consider whether they might be entitled to fees if they ultimately prevail.
Jason Cornell is a Florida attorney who represents homeowners who seek damages against lenders for wrongful foreclosure. You can reach Jason at 561 616-3333 or firstname.lastname@example.org.