Tuesday, August 6, 2013

Florida Appeals Court To Rogue Bankster: Not Only Was Your Foreclosure Action Dismissed, But The Trial Judge Did Not Abuse His Discretion By Sanctioning You For Ignoring His Discovery Orders & Sticking You With The $74K+ Tab For The Successful Homeowner's Legal Fees & Costs, So Pay Up!

In Miami, Florida, the state's 3rd District Court of Appeal recently issued the following ruling affirming a trial judge's decision to sanction a rogue bankster (it thumbed its nose at various discovery orders) and stick it with the tab for a homeowner's attorneys fees and costs for a successful defense against a foreclosure action(1) that was ultimately dismissed by the trial judge (by the way, the original foreclosure action was filed some time in 2009,(2) so one wonders how close the bankster is to Florida's 5-year statute of limitations in the event it refiles the foreclosure action - Sec. 95.11(2)(c), Florida Statutes):

  • This appeal stems from a foreclosure case filed by the lender, HSBC Bank USA, N.A., as Trustee for the Registered Holders of Renaissance Equity Loan Asset-Backed Certificates, Series 2007-3 (“the Bank”), against Gayle Williams (“the Homeowner”).

    The underlying foreclosure case was dismissed by the trial court based upon the Bank’s failure to comply with various discovery orders.

    The trial court’s dismissal in that regard was not appealed. In the matter before us, the Bank challenges the trial court’s order awarding the Homeowner $74,429 in costs and attorney’s fees.

    Given the Bank’s history in this case of disobeying court orders, we reject the Bank’s assertion that the trial court abused its discretion in sanctioning the Bank for failing to comply with the court’s scheduling order regarding attorney’s fees.

    Turning to the issue of the amount of the fees, the record contains the following evidence: (1) the time sheets and billing records of the Homeowner’s attorney; (2) the testimony of the Homeowner’s attorney; and (3) the testimony of two attorneys who offered expert opinions in support of the amount of fees.

    Contrary to the contention of the Bank, the record reflects that the Bank had prior written notice of the names of the expert witnesses who testified for the Homeowner on the issue of the amount of the attorney’s fees.

    In light of the substantial competent evidence in the record that supports the trial court’s findings, we conclude that the trial court did not abuse its discretion in awarding the costs and fees in the amount at issue. See Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So. 3d 204, 213 (Fla. 2012) (“The standard of review for an award of prevailing party attorney fees is abuse of discretion.”); United Auto Ins. Co. v. Ricardo, 916 So. 2d 44 (Fla. 3d DCA 2005) (same).

For the ruling, see HSBC Bank USA, N.A. v. Williams, No. 3D12-1784 (July, 31, 2013).

(1) For earlier posts on the right of Florida homeowners to stick a foreclosing bankster with the tab for their legal fees when successfully defending against a foreclosure action, see:
For those lawyers who handle these cases on a pro bono or contingency fee basis (ie. non-profit, legal aid attorneys, some private attorneys), see:
(2) Trial court case number 09-10793, Miami-Dade Circuit Court - Judge David C. Miller. The statute of limitations begins to run on the date of original default, or if there's a grace period (which there usually is), the date after the grace period expires, if I'm not mistaken.

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