Wednesday, May 18, 2011

Attorneys' Fee Claim Does Not Need To Be Raised In A Motion To Dismiss

In Nudel v. Flagstar Bank, FSB (4D10-3001), the Fourth District held "that a defendant is entitled to recover her attorney’s fees as a prevailing party under subsection 57.105(7), Florida Statutes (2009), after the court granted a motion to dismiss a mortgage foreclosure action and dismissed the case without prejudice."

After a foreclosure complaint was filed, "Nudel moved to dismiss the complaint, arguing that Flagstar lacked standing because MERS did not assign the bank the mortgage until after the bank filed the complaint." The trial court agreed and granted the motion to dismiss without prejudice. "Nudel [then] moved for attorney’s fees and costs on April 15, relying in part on the attorney’s fee provision in the mortgage. The circuit court denied the motion for fees, accepting Flagstar’s argument that Nudel had waived entitlement to fees under Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), and Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So. 2d 416 (Fla. 5th DCA 2003), because she had not sought attorney’s fees in her motion to dismiss." The Fourth District held that:
Initially, we hold Nudel did not waive her entitlement to attorney’s fees. It was proper for her to seek attorney’s fees in a motion filed after the entry of the dismissal without prejudice, because she had not yet filed a responsive pleading....Because a motion to dismiss is not a pleading, Stockman does not require the movant to raise the attorney’s fee claim in the motion; rather, “a defendant’s claim for attorney fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived.”...Nudel timely moved for attorney’s fees within thirty days of the dismissal, so she did not waive her claim.
Therefore, the Appellant was entitled to recover her prevailing party attorney fees pursuant to her motion for attorneys fees which was based upon the fee provision in her mortgage.


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