WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL; MSAC 2007-HE3, APPELLANT,
v.
ADREN BIRD, URAIWAN BIRD AND U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE, APPELLEES
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Wells Fargo appeals a judgment awarding contractual attorney's fees to borrowers whose signatures were forged on a mortgage. The court held that because the mortgage was void due to forged signatures, no valid contract existed, and therefore the borrowers could not recover attorney's fees under the mortgage's fee provision or Florida's reciprocity statute.
The court held that because the borrowers' forged signatures made the mortgage void and no valid contract existed, the borrowers could not recover contractual attorney's fees under paragraph 22 of the mortgage or under the reciprocity rule in section 57.105(7). Consequently, the borrowers also could not recover expert witness costs.
[1] A forged mortgage is void and a legal nullity.
[2] Contractual attorney's fees cannot be awarded under a provision in a void mortgage.
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Join FLexlaw to unlock all legal intelligence“A forged mortgage is void, a legal nullity.”
Establishes the foundational principle that forged mortgages have no legal effect
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Join FLexlaw to unlock all legal intelligenceAdren and Uraiwan Bird's signatures on a mortgage were forged. Wells Fargo, as trustee for a mortgage-backed securities trust, pursued claims against …
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Wells Fargo Bank National Association (“Wells Fargo”) appeals the final judgment imposing a set amount of contractual attorney’s fees against it and in favor of Adren and Uraiwan Bird (“Borrowers”). Wells Fargo argues that Borrowers cannot recover contractual attorney’s fees based on the attorney’s fees provision in paragraph 22 of the mortgage and section 57.105(7), Florida Statutes (2006), because the mortgage was void. We agree and reverse.
Contractual attorney’s fees must be enforced “absent compelling circumstances.” M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 975 So.2d 1288, 1289 (Fla. 4th DCA 2008) (citing Hutchinson v. Hutchinson, 687 So.2d 912 (Fla. 4th DCA 1997)). “The prevailing party is the party that won on the significant issues in litigation.” Id. at 1289-90. (citing Moritz v. Hoyt Enters., Inc., 604 So.2d 807 (Fla. 1992)). “Generally, a trial court’s determination of which party prevailed and its award of attorney’s fees is reviewed for an abuse of discretion.” T & W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010) (citing Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007)). The abuse of discretion standard is “usually with regard to the amount of an award rather than the actual entitlement to an award.” Hinkley, 971 So.2d at 956 (citing DiStefano Constr., Inc. v. Fid. & Deposit Co., 597 So.2d 248, 250 (Fla. 1992)). “However, when entitlement to attorney’s fees is based on the interpretation of contractual provisions, see Gibbs Construction Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000), or a statute, see Allstate Insurance Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006), as a pure matter of law, the appellate court undertakes a de novo review.” Hinkley, 971 So.2d at 956.
Here, it is undisputed that Borrowers’ signatures on the mortgage were forged. Consequently, there was no valid contract between Borrowers and Wells Fargo. See Jamnadas v. Singh, 731 So.2d 69, 70 (Fla. 5th DCA 1999) (“A forged mortgage is void, a legal nullity.” (citing Se. Bank, N.A. v. Sapp, 554 So.2d 1193 (Fla. 1st DCA 1989))). Thus, because there was no valid contract, it was error to award attorney’s fees under either paragraph 22 of the mortgage or the reciprocity rule found in section 57.105(7), Florida Statutes. See Bank of N. Y. Mellon v. Mestre, 159 So.3d 953, 956 (Fla. 5th DCA 2015) (holding attorney’s fees cannot be awarded under attorney’s fees clause in a void mortgage).1 And inasmuch as Borrow*835ers are not entitled to contractual attorney’s fees, they are also not entitled to recover their expert witness costs. See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) (citing Jupiter Mall Realty Corp. v. Rosner’s, Inc., 614 So.2d 52 (Fla. 4th DCA 1993)); Cohen v. Gen. Motors Corp., 444 So.2d 1170, 1171 (Fla. 4th DCA 1984).
Accordingly, we reverse that portion of the final judgment awarding attorney’s fees and expert witness costs to Borrowers. In all other respects, we affirm.
AFFIRMED in part, REVERSED in part.
SAWAYA, ORFINGER and BERGER, JJ., concur.
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Torruella v. Nationstar Mortg., LLC, 308 So. 3d 674 (Fla. 5th DCA 2020)
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PNC Bank v. MDTR, LLC, 243 So. 3d 456 (Fla. 5th DCA 2018)…e same property were not parties to the mortgage, thus they were not entitled to recover prevailing party attorney's fees under the mortgage); see also Wells Fargo Bank Nat'l Ass'n for Morgan Stanley ABS Capital, MSAC 2007-HE3 v. Bird, No. 5D16-669, 234 So. 3d 833, 834-35 n.1, 2018 WL 300655, at *1 n.1 (Fla. 5th DCA Jan. 5, 2018) (noting that awarding contractual attorney's fees to and against non-parties to a contract "is clearly not permissible"). Accordingly, we reverse the order granting attorney's fees…
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Deutsche Bank Tr. Co. Americas v. Page, 274 So. 3d 1116 (Fla. 4th DCA 2019)…borrower is entitled to fees. We disagree. "[W]hen entitlement of attorney's fees is based on the interpretation of contractual provisions ... or a statute ... the appellate court undertakes a de novo review." Wells Fargo Bank Nat'l Ass'n v. Bird , 234 So. 3d 833, 834 (Fla. 5th DCA 2018). Florida follows the "American Rule," which dictates that attorney's fees are only awarded if authorized by contract or statute. Glass , 219 So. 3d at 897. Under section 57.105(7), "[i]f a contract contains a provision all…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Moritz v. Hoyt Enters., Inc., 604 So. 2d 807 (Fla. 1992)
- DiSTEFANO Constr., Inc. v. Fid. & Deposit Co. OF Md., 597 So. 2d 248 (Fla. 1992)
- Grawbadger v. State, 727 So. 2d 1124 (Fla. 5th DCA 1999)
- Barner v. State, 755 So. 2d 787 (Fla. 5th DCA 2000)
- Candyce E. Hutchinson v. Hutchinson, 687 So. 2d 912 (Fla. 4th DCA 1997)
- Hinkley v. Gould, 971 So. 2d 955 (Fla. 5th DCA 2007)
- Terry v. State, 727 So. 2d 1124 (Fla. 5th DCA 1999)
- Fla. Cmty. Bank, N.A. v. RED Rd. Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016)
- T & W Developers, Inc. v. Salmonsen, 31 So. 3d 298 (Fla. 5th DCA 2010)
- Allstate Ins. Co. v. Regar, 942 So. 2d 969 (Fla. 2d DCA 2006)