In the case of Nationstar Mortgage LLC v. Glass, the Florida Supreme Court judge recently issued a ruling withdrawing its January 4, 2019 opinion. The Fourth District Court of Appeal originally 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. This was reversed on Thursday.
The original case saw borrower Marie Ann Glass seeking attorney fees from plaintiff Nationstar Mortgage LLC after the dismissal of a foreclosure suit against her. The Florida Supreme Court originally sided with Glass, who argued that Natiostar was not party to the mortgage contract and therefore could not bring a foreclosure suit. Glass won that suit, but began to recoup her court fees.
“Because our case law is clear that a voluntary dismissal of an appeal renders the opposing party the prevailing party for the purpose of appellate attorney fees, and because Nationstar maintained its right to enforce the reverse mortgage contract in its appeal until the dismissal, we quash the decision below,” said Justice Peggy Quince in referring to the original decision.
Burr & Forman LLP [1] reports that 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.
The Florida Supreme Court alleges that under some circumstances a lender could be taxed fees even though a borrower prevails on a defense predicated on standing. Additionally, the Florida Supreme Court found 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. According to JD Supra, due to the reversal, and “absence of jurisdiction”, a new ruling from the Florida Supreme Court on this issue is not expected soon.
According to Roy Diaz, Managing Shareholder at SHD Legal Group P.A., this reversal is "a very interesting turn of events".
"The Florida Supreme Court saw a major shift earlier this year with the appointment of three Justices who replaced Justice Barbara Pariente, Fred Lewis and Peggy Quince, each having reached mandatory retirement age," Diaz told DS News. "The outgoing Justices were considered liberal in their views and were replaced by Justices who are viewed as conservative. In his appointment, Governor Ron DeSantis (R) made it clear that he prefers a philosophy of judicial restraint as opposed to 'judicial activism'. In reversing the January 4, 2019 opinion due to lack of jurisdiction, the Court has re-set the issue which will find its way back to the Court eventually. When it does, it will be evaluated by a very different Judiciary who many believe constitutes the most conservative Florida Supreme Court in decades.”