Colombo v. Robertson, Anschutz & Schneid, P.L.
| Decision Date | 04 May 2022 |
| Docket Number | 4D20-1719 |
| Citation | 341 So.3d 1126 |
| Parties | Peter A. COLOMBO, Appellant, v. ROBERTSON, ANSCHUTZ & SCHNEID, P.L., Appellee. |
| Court | Florida District Court of Appeals |
Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, James A. Bonfiglio of the Law Offices of James A. Bonfiglio, P.A., Boynton Beach, Louis M. Silber of Silber & Davis, West Palm Beach, and Jack Scarola of Searcy Denney Scarola Barnhart & Shipley, West Palm Beach, for appellant.
Scott G. Hawkins of Jones Foster P.A., West Palm Beach, and Raymond L. Robin and Elizabeth A. Izquierdo of Keller Landsberg P.A., Fort Lauderdale, for appellee.
The trial court awarded a borrower his attorney's fees following dismissal in a prior foreclosure action. The bank brought a new foreclosure action and subsequently the borrower received a reinstatement letter. The borrower sued the bank's law firm for violating the Florida Consumer Collection Practices Act ("FCCPA") because the reinstatement letter required payment of attorney's fees incurred by the bank in the prior foreclosure action in order to reinstate the loan. The trial court granted summary judgment in favor of the law firm. We find the trial court did not err in determining that the law firm had not violated the FCCPA as a matter of law because the plain language of paragraph 19 of the mortgage contract gave the bank the right to seek attorney's fees from the prior foreclosure action as a condition of reinstating the loan. We affirm.
In 2006, Peter Colombo ("borrower") executed a note and mortgage on the subject property. Paragraph 19 of the mortgage provided that if the borrower defaulted and the lender accelerated the loan, the borrower would have a right to reinstate the loan if certain conditions were met. Among the reinstatement conditions, the borrower agreed to "pay[ ] all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys’ fees ...."
In 2008, U.S. Bank's predecessor-in-interest brought a foreclosure action against the borrower. The trial court dismissed the case for lack of prosecution and entered an agreed order awarding the borrower $27,500 in prevailing party attorney's fees. In 2017, U.S. Bank filed a new foreclosure action against the borrower concerning the same property. A month later, U.S. Bank sent the borrower a mortgage loan statement identifying the amount due. The borrower disputed certain charges, prompting a series of emails between the borrower and U.S. Bank, through their respective counsels. U.S. Bank's counsel, Robertson, Anschutz & Schneid, P.L. ("law firm"), ultimately suggested a reinstatement quote to assist in resolving the issues, and the borrower agreed. The law firm then sent the borrower a reinstatement letter setting forth the amount due to reinstate the loan. This amount included $3,733 in "[a]ttorney's [f]ees paid to prior counsel in the current action."
After receiving the reinstatement letter, the borrower filed an answer, affirmative defenses, and counterclaim, which he later amended. In the amended pleading, the borrower, individually and as class representative, set forth a claim against the law firm for violation of the FCCPA, section 559.72, Florida Statutes (2017), which prohibits a person from knowingly attempting to collect an illegitimate debt. The borrower argued that the reinstatement letter improperly charged for attorney's fees for "prior counsel in the current action" when there was no prior counsel in the current action. Additionally, inclusion of attorney's fees paid to prior counsel was improper because those fees were incurred in a prior unsuccessful foreclosure action that was involuntarily dismissed by the court.
The law firm filed three motions for summary judgment, arguing that (1) the law firm was entitled to collect attorney's fees and costs incurred in the prior foreclosure action pursuant to U.S. Bank Trust, N.A. as Trustee for LSF9 Master Participation Trust v. Leigh , 293 So. 3d 515 (Fla. 5th DCA 2019) ; (2) the law firm was entitled to immunity under the litigation privilege because the FCCPA claim was based on the reinstatement letter the law firm sent during the foreclosure proceedings; and (3) the borrower lacked standing to bring the FCCPA claim.
The trial court granted the first and third motions for summary judgment, finding that Leigh was controlling and that the borrower lacked standing. The trial court rejected the borrower's argument that section 57.105(7) was controlling, finding this argument overlooked the language in paragraph 19 of the mortgage. The trial court denied summary judgment based on litigation privilege. The borrower appeals the entry of final summary judgment for the law firm. The law firm conditionally cross-appeals the denial of its second motion for summary judgment based on litigation privilege.1
The borrower argues that the trial court erred in entering summary judgment in favor of the law firm because the law firm attempted to collect an illegitimate debt. The borrower contends that the law firm did not have the right to seek attorney's fees incurred by the bank in the previous foreclosure action because the borrower was awarded attorney's fees in that case under section 57.105(7).
"The standard of review for the entry of summary judgment is de novo ." Orlando v. FEI Hollywood, Inc. , 898 So. 2d 167, 168 (Fla. 4th DCA 2005). "Likewise, a trial court's interpretation of the language of a contract or statute is reviewed de novo." High Definition Mobile MRI, Inc. v. State Farm Mut. Auto. Ins. Co. , 321 So. 3d 818, 821 (Fla. 4th DCA 2021).
"Where contracts are clear and unambiguous, they should be construed as written ... from the words of the entire contract." Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A. , 771 So. 2d 628, 631 (Fla. 4th DCA 2000). "Courts are required to construe a contract as a whole and give effect, where possible, to every provision of the agreement." Anarkali Boutique, Inc. v. Ortiz , 104 So. 3d 1202, 1205 (Fla. 4th DCA 2012) (citation omitted). Finally, "[w]here the language of a contract is clear and unambiguous, the court can give to it no meaning other than that expressed." Wellington Realty Co. v. ColorAll Techs. Int'l, Inc. , 951 So. 2d 921, 922 (Fla. 4th DCA 2007).
The FCCPA provides: "In collecting consumer debts, no person shall ... [c]laim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist." § 559.72(9), Fla. Stat. "A claim under section 559.72(9) has three elements: an illegitimate debt, a threat or attempt to enforce that debt, and knowledge that the debt is illegitimate." Davis v. Sheridan Healthcare, Inc. , 281 So. 3d 1259, 1264 (Fla. 2d DCA 2019).
Paragraph 19 of the mortgage provides for the following:
19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued .... Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys’ fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument ; and (d) takes such action as Lender may reasonably require to assure that Lender's interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums secured by this Security Instrument, shall continue unchanged.
(emphasis added).
In granting summary judgment in favor of the law firm, the trial court found Leigh dispositive. We agree. In Leigh , the lender filed a foreclosure action in 2010 that was ultimately dismissed.2 293 So. 3d at 516. Several months later, the lender sent the borrower a demand letter seeking a "cure amount" that included money for the lender's attorney's fees and expenses from the 2010 foreclosure suit that was dismissed. Id. The Fifth District found that the lender was entitled to seek and recover its attorney's fees and litigation expenses from the first foreclosure action. Id. The Fifth District explained:
Leigh is factually analogous. Like in Leigh , in the present case the lender filed a foreclosure action that was ultimately dismissed. In both cases, the reason for dismissal could be attributed to the fault of the lender. In Leigh , the dismissal was based on the statute of limitations, while in this case the dismissal was due to lack of prosecution. After the dismissal, the lender in both cases commenced a new foreclosure proceeding and sought payment of attorney's fees incurred by the lender in the prior foreclosure action as a condition to reinstate the mortgage. Like in Leigh , paragraph 19...
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