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In Hopson v. Deutsche Bank Nat’l Trust Co (Fla. 2d DCA Aug. 28, 2019), the Second DCA held that a borrower that successfully challenges a lender’s standing to bring a foreclosure action cannot also recover contractual attorney’s fees.

In the trial court, the borrower successfully argued that Deutsche Bank was not the true party in interest, and was thus not authorized to maintain a foreclosure action against the borrower. However, the trial court denied the borrower’s motion for attorney’s fees. The trial court ordered that because the borrower prevailed at trial on the argument that Deutsche Bank lacked standing upon the contract at issue, the borrower thus could not recover attorney’s fees based on a provision in the same contract.

The Second DCA affirmed, holding that the borrower’s successful argument that Deutsche Bank was not a party to the mortgage was fatal to his attempt to recover attorney’s fees under the same mortgage.

The Second DCA’s holding aligned with several holdings from the Third, Fourth, and Fifth DCAs, which also rejected prevailing party attorney’s fee claims where the parties successfully showed that their opponents lacked standing to enforce a contract. Most poignantly, an en banc panel of the Fourth DCA recently issued an opinion that announced in all capital letters:


This opinion follows a change in precedent caused by the replacement of three Florida Supreme Court Justices in January. Shortly before the expiration of the terms of the three retiring Justices, the Florida Supreme Court issued an opinion holding that a borrower could recover prevailing party attorney’s fees despite successfully arguing the lender’s lack of contractual standing. However, after the three new Justices took the bench, the Florida Supreme Court issued a new opinion that recalled the mandate on the previous opinion, and dismissed review for lack of conflict jurisdiction.

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