Florida Supreme Court Withdraws Prior Opinion Limiting "No Standing No Fees" Issue

On April 18, 2019, the Florida Supreme Court issued a surprise ruling withdrawing its January 4, 2019 opinion in Nationstar Mortgage LLC v. Glass. The Florida Supreme Court’s opinion, which reversed the Fourth District Court of Appeal ruling in a case of the same name, 219 So. 3d 896, discussed when a defendant in foreclosure can recover attorney’s fees under the attorney’s fee provisions found in loan documents after the defendant prevails on a standing defense.

Originally, the Fourth District Court of Appeal held that the borrower who prevails on standing by arguing the lender is not a proper party to foreclose the note and mortgage, cannot then turn around and use that same note and mortgage to recover fees. See Glass, 219 So. 3d 896.

However, the Florida Supreme Court reversed, stating that under some circumstances a lender could be taxed fees even though a borrower prevails on a defense predicated on standing. The Florida Supreme Court went on to find that the lender in the Glass case was a party to the note and mortgage, despite the case’s dismissal at the trial court level, and so the lender could be taxed the borrower’s attorney’s fees.

The Florida Supreme Court’s opinion was met with confusion by lenders and foreclosure defense counsel alike and was already being distinguished by multiple Florida District Courts of Appeal prior to today’s order.

Today, the Florida Supreme Court withdrew its opinion in Glass finding that it improvidently granted jurisdiction in the case since the Fourth District’s opinion in Glass did not actually conflict with any other Florida District Court of Appeal opinion. This absence of jurisdiction means a new ruling from the Florida Supreme Court on this issue is not expected soon. As such, the Fourth District’s ruling in Glass, 219 So. 3d 896, finds renewed life as solid authority that a borrower generally cannot recover attorney’s fees when it prevails on a standing defense.

It will be interesting to see how the opinions contending with the now vacated Florida Supreme Court opinion in Glass hold up in light of the Florida Supreme Court’s abrupt reversal of course.  It also remains to be seen if a case on this issue will again matriculate to the Florida Supreme Court, and if so what the Florida Supreme Court (which has seen three new justices take the bench since the original opinion in Glass was authored in the Florida Supreme Court’s previous term) would rule. However, for now, litigants will have to rely on the now considerable body of Florida District Court of Appeal opinion on the issue, unless and until the issue returns to the Florida Supreme Court.

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