Issue link: http://dsnews.uberflip.com/i/1345366
75 for fees under section 57.105(7). "There was no adjudication that the note and mortgage never existed or that the bank never acquired the right to enforce the note and mortgage. The bank simply failed to carry its burden of proving it was the holder of the endorsed note at the time suit was filed." Finally, the court rejected the bank's argument that the trial court lacked subject- matter jurisdiction to award fees because standing is a component of subject-matter jurisdiction. The court cited to its precedent that standing is a waivable defense and therefore is not a component of subject- matter jurisdiction. WHAT DOES THIS MEAN? e "No Standing = No Fees" argument is effectively dead. Other than cases where it is proved that the note and mortgage do not exist, the borrower is adjudicated a non-party, or standing to foreclose does not exist either at the inception of the case or at trial, it is unlikely that an award of attorney's fees to the borrower will be denied. WHAT MAY BE TO COME? e court appears skeptical of the rule that standing to foreclose must be proven at the inception of the action, as opposed to later during litigation. e court noted in a footnote that the issue was not before the court, and "we therefore have no occasion to address the soundness of that rule." e court also questioned the purpose rule during oral argument. Jonathan Blackmore is Of Counsel at GrayRobinson, P.A. Blackmore has represented mortgage servicers and banks in default litigation in Florida for over a decade. He advises industry clients in state and federal litigation, appeals, transactions, and regulatory compliance including, but not limited to, foreclosure proceedings, Real Estate Settlement Procedures Act (RESPA), Truth in Lending Act (TILA), Fair Credit Reporting Act (FCRA), Florida's Deceptive and Unfair Trade Practices Act (FDUTPA), Florida's Consumer Collection Practices Act (FCCPA), Fair Debt Collections Practices Act (FDCPA), and Consumer Financial Protection Bureau (CFPB). He can be reached at Jonathan. Blackmore@gray-robinson.com. The "No Standing = No Fees" argument is effectively dead. Other than cases where it is proved that the note and mortgage do not exist, the borrower is adjudicated a non- party, or standing to foreclose does not exist either at the inception of the case or at trial, it is unlikely that an award of attorney's fees to the borrower will be denied.