On Wednesday, May 22, 2019, the Fourth District Court of Appeal in Venezia v. JP Morgan Acquisition Corp, Case No. 4D18-1278, 44 Fla. L. Weekly D1329a (Fla. 4th DCA May 22, 2019), held that “as the case was voluntarily dismissed and there was no judicial determination that the parties were not parties to the contract the Borrower was entitled to fees.”
In reaching this holding, the Fourth District Court of Appeal cited to Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153, 1154 (Fla. 4th DCA 2018), which held that a “borrower who had raised lack of standing as an affirmative defense was entitled to prevailing party attorney's fees following the bank's voluntary dismissal.” The court in Elkind reasoned, that “[s]tanding was never litigated below and the trial court never made a finding that the bank or the borrower were not parties to the contract” and thus, “the borrower did not prevail on his argument that dismissal was required because the bank lacked standing to sue on the contract.”
As noted above, this case is distinguished from Glass, as this case did not involve a judicial determination that no contract existed between the parties. This case is not yet final and subject to rehearing.
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