Jones v. U.S. Bank Trust, N.A.
Decision Date | 31 January 2020 |
Docket Number | Case No. 2D18-2106 |
Citation | 292 So.3d 459 |
Parties | Regina JONES, Appellant, v. U.S. BANK TRUST, N.A. AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, and Sedric B. Jones, Appellees. |
Court | Florida District Court of Appeals |
Robert E. Biasotti of Biasotti Law, Saint Petersburg, for Appellant, Regina Jones.
David Rosenberg, Cynthia L. Comras, and Jarrett Cooper of Robertson Anschutz & Schneid, P.A., Boca Raton, for Appellee, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust.
No appearance for remaining Appellee.
Regina Jones, a homeowner, prevailed at trial in a residential mortgage foreclosure action brought by U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust (U.S. Bank). The trial court granted Ms. Jones' motion for involuntary dismissal at the conclusion of U.S. Bank's case, apparently agreeing with Ms. Jones that the plaintiff did not have standing to foreclose her mortgage. Having won at trial, Ms. Jones now hopes to recover her attorney's fees.
As brief backdrop, the promissory note Ms. Jones had executed was payable to Morrison Home Funding, LLC d/b/a Taylor Morrison Home Funding. An allonge affixed to that note purported to transfer the note from Morrison Home Funding to SunTrust Mortgage, Inc. (the original plaintiff for whom U.S. Bank was later substituted), but that allonge was apparently executed by a "warehouse line operations supervisor" of SunTrust under an alleged power of attorney for Morrison Home Funding that SunTrust could not prove it had. At trial, U.S. Bank also offered into evidence certain "assignments of mortgage," which purported to transfer the recorded mortgage but not the note. But U.S. Bank abandoned whatever importance it thought those assignments had by the time its lawyer presented his argument in response to Ms. Jones' motion for involuntary dismissal.1 Thus, it appears that the note was not properly negotiated to U.S. Bank, and the trial court granted Ms. Jones' motion for involuntary dismissal.2
Ms. Jones filed a timely motion to recover her attorney's fees pursuant to paragraph 18 of the recorded mortgage that U.S. Bank had unsuccessfully sought to foreclose. In a handwritten order, the trial court denied her motion, clarifying that its ruling was "based on the court finding Plaintiff did not have standing." Ms. Jones appeals that order.
There is presently a dispute among the district courts of appeal over whether a defendant in a residential mortgage foreclosure case who prevails because the plaintiff fails to establish its standing to foreclose the mortgage is nevertheless entitled to recover attorney's fees under a prevailing party attorney's fee provision. Compare Harris v. Bank of New York Mellon, 44 Fla. L. Weekly D141, D143, ––– So.3d ––––, ––––, 2018 WL 6816177 (Fla. 2d DCA Dec. 28, 2018) () , and Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1138 (Fla. 5th DCA 2017) () review dismissed SC18-966, 2019 WL 5963521 (Fla. Nov. 12, 2019), with Nationstar Mortg. v. Glass, 219 So. 3d 896, 899 (Fla. 4th DCA 2017) ( ); Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116, 121 (Fla. 3d DCA 2017) ().
Ms. Jones' argument on appeal pursues a somewhat unique tack. She maintains that the recorded mortgage itself, separate and distinct from the promissory note, offers its own independent basis for her to recover her attorney's fees from the unsuccessful plaintiff in her case. Thus, notwithstanding U.S. Bank's lack of standing, she argues she is entitled to recover her attorney's fees under the mortgage U.S. Bank tried to foreclose. As Ms. Jones puts it, "[m]ortgages and [a]ssignments of [m]ortgage are valid, stand-alone contracts." Since, she contends, the evidence below proved the mortgage had been assigned to U.S. Bank (even if the note had not), and since that mortgage contains a prevailing party attorney's fee provision in favor of the mortgagor, she is entitled, under section 57.105(7), Florida Statutes (2012) to recover her attorney's fees against U.S. Bank.3
Although we very much question the premise of Ms. Jones' argument—that a mortgage is a "stand-alone contract"4 —to definitively address that issue here would require this court to resolve a legal issue that was not presented below and make findings about the assignments of mortgage that were never requested below. Other than being offered into evidence, no one before the trial court said anything at all about these assignment of mortgage documents. As an appellate court, we are not permitted to make initial determinations about their factual effect and importance. See Farneth v. State, 945 So. 2d 614, 617 (Fla. 2d DCA 2006) (); Douglass v. Buford, 9 So. 3d 636, 637 (Fla. 1st DCA 2009) (); cf. Bayview Loan Servicing, LLC v. Dzidzovic, 249 So. 3d 1265, 1268 (Fla. 2d DCA 2018) ) . Nor do we ordinarily address a novel legal issue that was never raised or ruled upon in the trial court. See Miller v. Miller, 709 So. 2d 644, 645 (Fla. 2d DCA 1998) ; P & O Ports Fla., Inc. v. Cont'l Stevedoring & Terminals, Inc., 904 So. 2d 507, 511 (Fla. 3d DCA 2005) () .
Since judicial restraint precludes us from resolving Ms. Jones' argument, we affirm the order below.
Affirmed.
1 After they were admitted into evidence, the assignments of mortgage were never mentioned again in any meaningful sense throughout the proceedings below.
2 U.S. Bank did not appeal the trial court's involuntary dismissal of its complaint.
3 Section 57.105(7) provides:
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...that argument unpreserved in the trial court is "procedurally barred on appeal"); Jones v. U.S. Bank Trust, N.A. as Tr. for LSF9 Master Participation Trust , 292 So. 3d 459, 462 (Fla. 2d DCA 2020) (refusing, in civil litigation context, to "address a novel legal issue that was never raised ......