Reversed and Remanded for Further Proceedings
Narciso Vivot v.
Bank of America, 38 Fla. L. Weekly D125c, Case No. 2D12-2757, issued
June 5, 2013: After defendant successfully moved to dismiss mortgage foreclosure for failure to
prosecute, trial court's denial of attorney fees based on the terms of the note
and mortgage and s. 57.105 was REVERSED
and REMANDED for further proceedings.
The appellate court cited: Raze v.
Deutsche Bank, 100 So. 3d 121 (Fla. 2nd DCA 2012, in which
fees were awarded to the defendant as the "prevailing party" after
the trial court had involuntarily dismissed a mortgage foreclosure suit based
on the plaintiff bank's failure to comply with the court's directives: Stout Jewelers, Inc., v. Corson,
639 So. 2d 82 (Fla. 2d DCA 1994), in which fees were awarded to the tenant as
the "prevailing party" after the landlord's action has been dismissed
for failure to prosecute; and J. P. Morgan Mortgage Acquisition Corp. v.
Golden, 98 So. 3d 220 (Fla. 2nd DCA 2012), in which defendant was determined to be the
"prevailing party" after dismissal of a mortgage foreclosure based on
the plaintiff's failure to give proper notice, even though the action could be
refilled.
(From RPPTL Subcomittee)
Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
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