No contract, no fees, no, really

We’re all familiar with the notion that one can’t have something both ways, a notion that has been idiomized in a number of ways over the years:

  1. “What’s good for the goose is good for the gander.”
  2. “You can’t have your cake and eat it, too.”
  3. “What goes around, comes around.”
  4. “Because the homeowner prevailed on an argument that the bank failed to prove entitlement to enforce the note and mortgage, the homeowner cannot now seek to take advantage of the fee provisions of the note and mortgage.”

Wait, say what? You’re not familiar with that fourth one? Well, you’re forgiven because it’s fairly recent, originating from a 2018 case1Torres v. Bank of New York for Certificate Holders CWABS, Inc. Asset Backed Certificates Series 2006-26, No. 4D17-1625, 2018 WL 4026038 (Fla. 4th DCA 2018). decided by Florida’s Fourth District Court of Appeals. In the referenced case, the 4th DCA had to decide whether a homeowner who successfully defended a foreclosure action was entitled to recover from the foreclosing bank his defense attorney’s fees and costs. At trial, the homeowner was successful in opposing the foreclosing lender’s attempt to introduce the promissory note into evidence. No note, no foreclosure, right? Well, sure, said the trial court, and the homeowner won the case. To the victor go the spoils, apparently, so the homeowner then sought to recover from the bank his attorney’s fees and costs, as well. When his request was denied, he appealed.

The American Rule

In America, our court systems follow the “American Rule,” requiring that all litigants in court pay for their own attorney’s fees and costs. The exception to this rule is that parties may recover fees and costs from the other side if a statute, rule, or contractual provision provide for such. The homeowner claimed entitlement to his fees and costs based upon the provision in the note and mortgage providing for same.

Goose, meet Gander

The 4th DCA said that this doesn’t fly; the homeowner could not recover his attorney’s fees and costs under the contract, when the contract never made it into evidence, because (recall) that the homeowner opposed its admittance.

Not a goose egg, however

Despite this, the 4th DCA did, however, hold that the homeowner was entitled to recover his costs; not because of the contractual provision, but because of a rule and a statute, specifically, Fla. R. Civ. P. 1.420(d)2Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs.” and Florida Statutes, § 57.041(1)3”The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment ….”.

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1. Torres v. Bank of New York for Certificate Holders CWABS, Inc. Asset Backed Certificates Series 2006-26, No. 4D17-1625, 2018 WL 4026038 (Fla. 4th DCA 2018).
2. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs.”
3. ”The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment ….”