Stephen A. HENDERSON, Jr., Appellant, v. ONEWEST BANK, FSB, Appellee

District Court of Appeal of Florida

Stephen A. HENDERSON, Jr., Appellant, v. ONEWEST BANK, FSB, Appellee

217 So. 3d 209, 2017 Fla. App. LEXIS 5261

CourtDistrict Court of Appeal of Florida

DecidedApril 18, 2017

DocketCASE NO. 1D16-2670

StatusPublished

Cited by3 cases

This text of 217 So. 3d 209 (Stephen A. HENDERSON, Jr., Appellant, v. ONEWEST BANK, FSB, Appellee) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Stephen A. HENDERSON, Jr., Appellant, v. ONEWEST BANK, FSB, Appellee, 217 So. 3d 209, 2017 Fla. App. LEXIS 5261 (Fla. Ct. App. 2017).

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Opinion

KELSEY, J.

Appellant raises multiple issues in this case involving foreclosure on his late mother’s reverse mortgage. We affirm on all issues except one, that one being the award of attorneys’ fees, as to which we reverse and remand for further proceedings.

Appellee’s representative testified at the bench trial that the amount of attorneys’ fees reflected in a proposed final judgment—$8,976.70—was accurate according to Appellee’s records. The proposed final judgment was not entered into evidence at the trial. Shortly before the bench trial, an attorney with Appellee’s law firm executed an “Affidavit as to Time, Effort, and Costs,” stating a total of $13,753.50 in fees were due for the representation, based on a blend of flat-rate and hourly fees. The affidavit was filed with the trial court before trial, and thus appears in the appellate record, but was never admitted into evidence or even mentioned at the trial; and neither the affiant nor any other representative of the law firm, nor any expert, testified at the trial. On these facts, Appel-lee may be entitled to attorneys’ fees, but it first must adduce additional competent and substantial evidence in support of the fees claimed.

Mortgage foreclosure plaintiffs seeking attorneys’ fees must support their claim with competent, substantial evidence of the number of hours worked and evidence that those hours and hourly rates are reasonable. Absent a stipulation or waiver, the party seeking fees should present testimony from the lawyer who performed the services or an authorized representative of the law firm, and an expert as to reasonableness of the rates and fees. Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc., 143 So.3d 958, 960-61 (Fla. 4th DCA 2014). If the record reflects some evidence supporting the fee award, but not testimony from the lawyer or law firm or an expert, the proper remedy is to remand for further proceedings. Id.) see also Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040-41 (Fla. 2d DCA 2015) (remanding for evidentiary hearing where record included fee and cost affidavits filed with the trial court but not admitted into evidence at trial) (citing Wagner v. Bank of Am., N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014)).

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for the trial court to take additional evidence on attorneys’ fees.

ROWE and JAY, JJ., CONCUR.

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KELSEY, J.

Appellant raises multiple issues in this case involving foreclosure on his late mother’s reverse mortgage. We affirm on all issues except one, that one being the award of attorneys’ fees, as to which we reverse and remand for further proceedings.

Appellee’s representative testified at the bench trial that the amount of attorneys’ fees reflected in a proposed final judgment—$8,976.70—was accurate according to Appellee’s records. The proposed final judgment was not entered into evidence at the trial. Shortly before the bench trial, an attorney with Appellee’s law firm executed an “Affidavit as to Time, Effort, and Costs,” stating a total of $13,753.50 in fees were due for the representation, based on a blend of flat-rate and hourly fees. The affidavit was filed with the trial court before trial, and thus appears in the appellate record, but was never admitted into evidence or even mentioned at the trial; and neither the affiant nor any other representative of the law firm, nor any expert, testified at the trial. On these facts, Appel-lee may be entitled to attorneys’ fees, but it first must adduce additional competent and substantial evidence in support of the fees claimed.

Mortgage foreclosure plaintiffs seeking attorneys’ fees must support their claim with competent, substantial evidence of the number of hours worked and evidence that those hours and hourly rates are reasonable. Absent a stipulation or waiver, the party seeking fees should present testimony from the lawyer who performed the services or an authorized representative of the law firm, and an expert as to reasonableness of the rates and fees. Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc., 143 So.3d 958, 960-61 (Fla. 4th DCA 2014). If the record reflects some evidence supporting the fee award, but not testimony from the lawyer or law firm or an expert, the proper remedy is to remand for further proceedings. Id.) see also Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040-41 (Fla. 2d DCA 2015) (remanding for evidentiary hearing where record included fee and cost affidavits filed with the trial court but not admitted into evidence at trial) (citing Wagner v. Bank of Am., N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014)).

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for the trial court to take additional evidence on attorneys’ fees.

ROWE and JAY, JJ., CONCUR.

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217 So. 3d 209, 2017 Fla. App. LEXIS 5261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephen-a-henderson-jr-appellant-v-onewest-bank-fsb-appellee-fladistctapp-2017.

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