CORALIA RUBIELLA v. CASCADE FUNDING RM3 ACQUISITIONS GRANTOR TRUST

C
       Third District Court of Appeal
                               State of Florida

                          Opinion filed May 19, 2021.
       Not final until disposition of timely filed motion for rehearing.

                            ________________

                             No. 3D20-0816
                       Lower Tribunal No. 19-15630
                          ________________


                            Coralia Rubiella,
                                  Appellant,

                                     vs.

      Cascade Funding RM3 Acquisitions Grantor Trust,
                                  Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Alan S. Fine,
Judge.

     Legal Services of Greater Miami, Inc., and Matthew Bayard, Jeffrey M.
Hearne, and Mandy L. Mills, for appellant.

      Nelson Mullins, and Terrance W. Anderson, Jr. (Boca Raton), for
appellee.


Before EMAS, C.J., and HENDON and MILLER, JJ.

     EMAS, C.J.
      Coralia Rubiella—the borrower and defendant in this reverse mortgage

foreclosure—appeals the trial court’s order denying her motion for attorney’s

fees following a successful defense of the action below. 1       The reverse

mortgage at issue contained a unilateral prevailing-party attorney’s fee

provision in favor of the lender. Rubiella’s motion for attorney’s fees alleged

that, as the prevailing party, section 57.105(7), Florida Statutes (2019),

applied to make the unilateral attorney’s fee provision reciprocal, thereby

entitling her to an award of attorney’s fees. In response, Cascade Funding

RM3 Acquisitions Grantor Trust countered that because the underlying loan

was non-recourse—meaning Rubiella could not be personally liable for the

lender’s attorney’s fees even if Cascade had prevailed—reciprocity under

section 57.105(7) was inapplicable and therefore Rubiella was not entitled

to attorney’s fees.

      The trial court denied Rubiella’s motion for attorney’s fees, based on

this court’s 1992 decision in Suchman Corp. Park, Inc. v. Greenstein, 

600

So. 2d 532

, 533 (Fla. 3d DCA 1992). In Suchman we held that, because the

underlying mortgage was based upon a nonrecourse loan, in which the

borrower cannot be personally liable for the lender’s attorney’s fees should


1
 The trial court granted Rubiella’s motion to dismiss the foreclosure action.
The plaintiff below, Cascade Funding RM3 Acquisitions Grantor Trust, did
not appeal that dismissal order.

                                      2
the lender prevail in its action to foreclose the mortgage, the unilateral

attorney’s fees provision in the nonrecourse loan cannot be made reciprocal

(and a prevailing borrower cannot be awarded attorney’s fees) by application

of section 57.105(7).

     The legal question thus presented is whether the nonrecourse nature

of the underlying loan renders inapplicable the reciprocity provision of

section 57.105(7). We recently answered that question in the negative in

Castellanos v. Reverse Mortgage Funding, LLC, 3D20-472 (Fla. 3d DCA

May 12, 2021).

     In Castellanos

, id. at *2-3,

we reversed the trial court’s order denying

the prevailing borrower’s motion for attorney’s fees, holding that the

unilateral attorney’s fee provision in the mortgage was made reciprocal by

application of section 57.105(7), notwithstanding the nonrecourse nature of

the underlying loan. We also held:

     To the extent Suchman holds that, as a matter of law, the
     reciprocity provision of section 57.105(7) cannot apply to
     authorize an award of attorney’s fees to a prevailing borrower on
     an underlying nonrecourse loan, we determine such a holding
     has been implicitly overruled by the Florida Supreme Court’s
     recent decision in Page v. Deutsche Bank Tr. Co. Ams., 

308 So.
3d

953 (Fla. 2020) (holding that a unilateral attorney's fee
     provision in a note and mortgage was made reciprocal to a
     borrower under section 57.105(7) when the borrower prevailed
     in a foreclosure action on its standing defense).




                                     3
     The instant case is indistinguishable, in all material respects, from

Castellanos. Therefore, and as we did in Castellanos, we reverse the trial

court’s order denying Rubiella’s motion for attorney’s fees, and remand for

the trial court to enter an order granting entitlement to fees under section

57.105(7) and for further proceedings consistent with this opinion.

     Reversed and remanded.




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