TALLAHASSEE – A recent Florida Supreme Court case regarding foreclosure and the payment of attorney's fees has been gaining a great deal of traction and may even impact attorney pay for the foreseeable future in the state.

The situation developed from a case that highlighted the imbalance regarding the loan system and financial institutions' relationship with borrowers, Marie Ann Glass v. Nationstar Mortgage, et al.

Peter Ticktin of The Ticktin Law Firm, who is one of the homeowner's supporters, explained how the issue has become more convoluted over time.

"Basically, there were other cases that preceded this case long ago where, for example, in one case, there was a contract and the one side sued the other, based on the contract; but the defendant to that case never signed the contract and it was just a forgery. So, their defense of that case was 'Hey, that was a forgery, it's not actually a contract.' So when they won the case, they didn't have the right after that to move for attorney's fees, pursuant to the contract that they never signed, which makes sense, because if there is no contract, where are you getting the authority for an award of attorney's fees," Ticktin told the Florida Record. "In Florida, we have what we call the America Rule, which is: You don't get attorney's fees unless it's provided for in a contract or in a statute."

Ticktin said the forged contract put the defendants in a challenging situation because the lack of one meant that they couldn't collect attorney's fees, even though they won the case.

"So, the courts expanded that principle and they said, because there wasn't a note at the time they, the bank, filed the complaint, you are now not able to collect attorney's fees pursuant to the provisions in that agreement. And that is very different than saying there never was an agreement in writing in the first place, especially considering that rights to attorney's fees arise later, not at the initiation of the case, but when you win a case," Ticktin said. "If you can show at the time you win the case that everything was in good place, then why shouldn't you be able to collect pursuant to that contract?"

Ticktin went on to explain what these messy details mean for individuals in Florida who are being foreclosed on, especially following the most recent housing crisis.

"What this means is that the banks can win attorney's fees if they win the suit and that homeowners are unable to win attorney's fees if they win the suit," Ticktin said. "It changes the whole world from being a level playing field to being one where the banks who can afford to get lawyers get their fees and the homeowners who can't afford lawyers, other than on contingency of them winning the fees, cannot get any help. So it basically says the strong and the mighty will get more help.

"The banks will have more of a windfall. It hurts the average man and lawyers. We're now in a position where even if you did the work and won the case, you're still not going to get fees even though there's a valid contract that says you get fees."

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