WILMA NICHOLAS A/K/A WILMA JEAN NICHOLAS vs U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE O/B/O AND WITH RESPECT TO AJAX MORTGAGE LOAN TRUST 2015-B, MORTGAGE BACKED NOTES, SERIES 2015-B AND ROBERT JAMESON

• Court: District Court of Appeal of Florida
• Decided: November 4, 2022
• Docket: 21-2885
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

WILMA NICHOLAS A/K/A WILMA JEAN NICHOLAS,

Appellant, Case No. 5D21-2885 LT Case No. 2017-CA-001727 v.

U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE O/B/O AND WITH RESPECT TO AJAX MORTGAGE LOAN TRUST 2015-B, MORTGAGE BACKED NOTES, SERIES 2015-B AND ROBERT JAMESON,

Appellees.

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Opinion filed November 4, 2022

Appeal from the Circuit Court for Lake County, Larry Edward Metz, Judge.

Blake J. Fredrickson, of Cremeens Law Group, PLLC, Tampa, for Appellant.

Ryan B. Lamchick and Ronald Pereira, of Lamchick Law Group, P.A., Miami, for Appellee, U. S. Bank National Association, etc.

COHEN, J. Wilma Nicholas a/k/a Wilma Jean Nicholas appeals the trial court’s

final judgment of foreclosure entered in favor of U.S. Bank National

Association, as Indenture Trustee o/b/o and with respect to AJAX Mortgage

Loan Trust 2015-B, Mortgage Backed Notes, Series 2015-B (“U.S. Bank”).

We affirm in all respects except for the award of attorney’s fees to U.S. Bank.

At the bench trial, the trial court properly noted that “whoever prevails

receives fees” but also indicated that the amount of fees was “not an issue

to be decided at trial.” Notwithstanding, in the final judgment of foreclosure,

the trial court awarded U.S. Bank $31,813 in attorney’s fees, the amount

reflected in two affidavits filed by U.S. Bank five days before trial. On appeal,

Nicholas argues that U.S. Bank failed to present competent substantial

evidence to support the award of attorney’s fees.

We cannot agree with U.S. Bank that its two affidavits constitute

competent substantial evidence supporting the attorney’s fees award. U.S.

Bank’s fee affidavits were never presented at trial, let alone admitted as

evidence, and there was no testimony as to the reasonableness of the

amount or hourly rate sought. See Sands v. Deutsche Bank, Nat’l Tr. Co.,

251 So. 3d 359, 360 (Fla. 5th DCA 2018) (reversing attorney’s fees award in

final judgment of foreclosure and remanding for evidentiary hearing where

fee award “was not supported by testimony from an attorney regarding the

2 work done in this case”). Accordingly, we remand for an evidentiary hearing

on the amount of attorney’s fees sought. Petrovsky v. HSBC Bank, USA, 185

So. 3d 700, 702 (Fla. 4th DCA 2016) (concluding that bank’s attorney’s fees

affidavit filed prior to trial was insufficient to support fee award and remanding

to trial court for evidentiary hearing); Colson v. State Farm Bank, F.S.B., 183

So. 3d 1038, 1040–41 (Fla. 2d DCA 2015) (“Remand for ‘an evidentiary

hearing on the amount of attorney’s fees and costs sought by the bank’ is

necessary and proper where the only evidence of the fees and costs ‘was an

affidavit filed by the bank’s counsel prior to trial.’” (citation omitted)).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

EVANDER and TRAVER, JJ., concur.