A law firm requested a flex-time attorney of De Novo Review, LLC research and prepare a memorandum on the question of does a mortgagor, as a prevailing party in a foreclosure action, have to serve a 21-day safe harbor notice under section 57.105(4), Florida Statutes, when seeking attorney’s fees pursuant to section 57.105(7)?
No. Section 57.105(7) provides that “if a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” For all mortgages executed after October 1, 1988, section 57.105(7) “provides the other party to the mortgage – i.e. the mortgagor – a substantive right to the recovery of its fees in any action where, by virtue of the fee provision in the mortgage, the mortgagee would be entitled to fees.” See Florida Community Bank, N.A. v. Red Road Residential, LLC, 2016 WL 3176813 (Fla. 3d DCA June 8, 2016) (emphasis added).
“In other words, notwithstanding that the contractual fee provision is one-sided, entitling only one of the contract’s parties to prevailing party fees, by operation of law section 57.105(7) bestows on the other party to the contract the same entitlement to prevailing party fees.” Id. (emphasis added).
The policy behind the legislature’s enactment of the reciprocity mandate of section 57.105(7) was to “provide mutuality of attorney’s fees as a remedy in contract cases” as the “statute [was] designed to even the playing field….” Florida Hurricane Protection & Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010)(stating “[t]he statute renders ‘bilateral a unilateral contractual clause for prevailing party attorney’s fees.’”).
Florida case law requires in mandatory terms that a party to a unilateral attorney’s fee provision be awarded attorney’s fees under section 57.105(7) as long as (1) they are the prevailing party and (2) they affirmatively sought attorney’s fees in their pleading. The pleading, however, must specify that the demand for attorney’s fees is pursuant to the contract, or in the case of a foreclosure, the mortgage. A general request for attorney’s fees is not likely sufficient to satisfy the notice requirement. As long as the non-moving party is on notice of the claim for fees under the mortgage by way of the moving party’s pleadings, there is no requirement that the moving party send a separate 21-day safe harbor notice.
De Novo Review, LLC provides flex-attorney staffing to law firms. When there is a shift in the workload and your firm suddenly has simultaneous or competing priorities, our firm can provide a contract or flex-time lawyer on your firm’s terms:
1. Ultimate Flex-Time (monthly time blocks). Select a block of 20, 60, or 120 hours to be used in a specific month or quarter. The larger time blocks you select, the lower the hourly rate. This plan gives you ultimate flexibility especially when you are anticipating future needs.
2. Interim Flex-Time (specific days). With in-house legal work but not enough to hire a full-time attorney, this plan allows you to choose 2, 3 or 4 days a week. Your Flex-Time attorney will be available on those days.
3. Gap Flex-Time (specific period). Get full-time attorney help to cover a leave, absence or fill-in during the selection process of a new hire. This plan helps you fill in employment gaps without having to commit long term.
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