THE CURRENT BIAS: EVEN IF HOMEOWNER WINS, NO FEE RECOVERY

Dear Neil Garfield:

You recently complained that the Florida 4th DCA in Sabido v Bank of NY Mellon, the court denied recovery of attorney fees to the Sabidos even though they won at trial.

Clearly you don’t understand the American Rule, or you wouldn’t complain. That rule provides that each party is responsible for paying its own attorney fees unless specific authority granted by statute or contract allows assessment of fees against the other party.

The Florida uniform mortgage security instrument does provide the creditor with the right to recover from the borrower all costs of collecting the mortgage debt, including attorney fees. If Sabidos wanted the same right, they should have written it into the security instrument before signing it.

Florida Statute 57.105 provides for sanctions and recovery of attorney fees by a party that raised unsupported claims. You know about that law first hand because the appellate court awarded recovery of fees to the creditors you sued in the Maslanka case because you lodged unsupported (some might say delusional) claims on behalf of Zdzislaw Maslanka.

The Sabido court based its opinion on the following:

“The borrowers’ motion for fees is denied because the Bank of New York Mellon was not a party to the note and mortgage, and because the borrowers successfully argued that the Bank of New York Mellon was not entitled to enforce the instrument containing the attorney fee provision.”

Ooops.  Maybe the Sabidos should have asked the court to sanction Bank of New York Mellon for lodging an unsupportable claim.  In this case, the borrower stuck his hand in the wrong cookie jar.

Bob Hurt
Mortgage Attack

On 2018-02-13 10:39, Livinglies’s Weblog wrote:

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