Attorney’s Fees Post Safe Harbor (Emerald Estates C.A. v. US Bank)  __________________________________________

The date title transferred and entitlement to the “Safe Harbor” were key in yesterday’s decision in Emerald Estates C.A. v. US Bank N.A., Case No. 4D17-1278 (4th DCA, April 4, 2018).  In summary, to be held against the acquiring mortgage holder association attorneys’ fees accruing before that date are not collectible, differentiating attorneys’ fees accruing after that date.

US Bank sued the Emerald Estates Association asserting that the Association’s estoppel letter improperly sought more money than was authorized pursuant to §720.3085(2)(c) Fla. Stat. (2016). The trial court granted the Bank’s Motion for Summary Judgment on the basis that attorney’s fees and costs accruing before the Bank acquired title were not allowable pursuant to Catalina West HOA, Inc. v. FNMA, 188 So.3d 76 (Fla. 3rd DCA 2016).

The appellate court distinguished between attorney’s fees accruing before the Bank acquired title, and attorney’s fees accruing after the Bank acquired title. Reaffirming Catalina, the court agreed with the trial court’s holding so far as it prohibited collection of costs and attorney’s fees accruing before the Bank took title.

Reversal was required because the Association asserted that costs and attorney’s fees stated in the estoppel letter accrued after the Bank acquired title. To the extent that there was a dispute over the basis for attorney’s fees, the Summary Judgment could not stand.

In reversing, the court appeared to implicitly acknowledge that the Association is entitled to collect attorney’s fees for efforts after the Bank acquired title. Of course, reviewing the trial court record, including the Complaint with an attached estoppel letter sent within six months of title transfer seeking attorney’s fees of $9,951.08 one may anticipate that the next fight in this dispute will be whether attorney’s and costs were reasonable.

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