Wells Fargo Bank, N.A. v. Hanna, Case No. 12-003024CI-20
The parties have entered into a Permanent Loan Modification Agreement. As a
result of said Agreement and in the interest of justice, Plaintiff wishes to
voluntarily dismiss the instant action without prejudice.
This is Plaintiff's first Voluntary Dismissal and thus does not constitute an
adjudication on the merits under Florida Rules of Civil Procedure 1.420(a)(1) and
all parties shall bear their own "fees and costs."
In the pending motion, Emad Hanna and Maggi Hanna (the "Hannas") seek their
attorney's fees and costs under the terms of the Note and Mortgage and section
57.105(7), Florida Statutes (2015). The Hannas assert that based on the Bank's Notice
of Voluntary Dismissal they are the prevailing parties. In response, the Bank points out
that this mortgage foreclosure action was voluntarily dismissed because the parties
entered into a FHA Home Affordable Modification Program (HAMP) Agreement dated
August 19, 2015. (Bank Response, Ex. A). Therefore, it is argued, the Hannas are not
the prevailing parties.
Discussion
Motion for Attorney's Fees
Generally, when a plaintiff voluntarily dismisses an action, the defendant is the
prevailing party. See Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d
1034, 1040-41 (Fla. 2d DCA 2013). However, the courts have recognized exceptions to
this general rule with regard to a request for prevailing party attorney's fees. See Kelly
v. BankUnited, FSB, 159 So. 3d 403, 405-07 (Fla. 4th DCA 2015)(discussing Walter D.
Padow, M.D., P.A. v. Knollwood Club Ass'n, 839 So. 2d 744 (Fla. 4th DCA 2003);
Tubbs).
In Padow, during the pendency of the lawsuit, the defendant capitulated to the
demands of the plaintiff and satisfied a substantial portion of the plaintiff's claim for
outstanding financial obligations. The plaintiff later voluntarily dismissed its action. On
motion, the defendant was found not to be the prevailing party. The trial court held:
"[T]o find that Padow was the prevailing party under these circumstances would require
a plaintiff to fight every case to judgment, even though it 'achieved all of the legitimate
goals of [its] suit,' which was not a goal of the legislature in passing the statute."
Padow, 839 So. 2d at 745. The trial court's reasoning was affirmed by the Fourth
District Court of Appeal.