Attorneys’ fees should NEVER be awarded by summary judgment

Posted on September 1st, 2010 by Mark Stopa

As a foreclosure defense attorney who represents homeowners throughout Florida, I’ve become all too familiar with the shortcuts taken by foreclosure mills in trying to “push through” foreclosure cases.  One tactic I repeatedly see is requests for attorneys’ fees as part of a summary judgment motion.  Typically, the plaintiff’s attorney signs an affidavit that his fees are reasonable, and another attorney, acting as an “expert,” signs an affidavit opining the same, and the bank requests that these fees be included as part of the Final Judgment of Foreclosure. 

This may sound like a legitimate approach, but here’s the thing.  If you object to the court’s consideration of attorneys’ fees by affidavit, and insist on the “expert” testifying live, in open court, you should prevent the court from awarding attorneys’ fees at a summary judgment hearing.  This is not an area of law in which the judge has discretion;

attorneys’ fees cannot be awarded based on affidavits when the opposing party insists on live testimony. 

When I see this issue (and I see it in essentially every foreclosure case), here’s what I do.  I file an objection, and argue as follows:

1. In its Motion for Summary Judgment, Plaintiff attempts to tax attorneys’ fees and costs.  In support, Plaintiff provides an affidavit of its counsel and an affidavit of an alleged expert. 
2. The affidavit of this “expert” lacks facts and is conclusory in nature.  Under the circumstances, Defendants want to cross-examine this alleged “expert” as to the factual basis of the affidavit. 
3. Under controlling law, attorneys’ fees may be awarded upon presentation of affidavits, without live testimony, if the party opposing the entry of fees does not object.  See DM Records, Inc. v. Turnpike Commercial Plaza, 894 So. 2d 1030 (Fla. 4th DCA 2005); Ins. Co. of North America v. Julien P. Benjamin Equip. Co., 481 So. 2d 511 (Fla. 1st DCA 1985). 
4. In this case, however, Defendants are objecting to the use of affidavits in lieu of live testimony.  As such, an evidentiary hearing on the Motion is required.  See Dvorak v. First Family Bank, 639 So. 2d 1076 (Fla. 5th DCA 1994); Dhondy v. Schimpeler, 528 So. 2d 484 (Fla. 3d DCA 1988); Soundcrafters, Inc. v. Laird, 467 So. 2d 480 (“the trial court erred in permitting Laird’s sole expert to testify by way of affidavit over Soundcrafters’ objection.”); Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979); Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979) (“In an adversary proceeding such as this the determination of an attorneys fee for the mortgagee based upon affidavits over objection of the mortgagor is improper. Evidence should be adduced so that the full range of cross examination will be afforded both parties.”). 
5. As evidence is not permissible at a summary judgment hearing, see Fla.R.Civ.P. 1.510, it would be reversible error to award attorneys’ fees via summary judgment.  See cases, supra. 

As I see it, this is a really simple way to prevent banks from tacking on attorneys’ fees at a summary judgment hearing.  Banks and their lawyers don’t like it, but short of asking the judge to ignore the law, there’s not much they can do about it.   

One could argue that this is a bad idea because banks can come back and re-set a hearing, with live testimony (after entry of Final Judgment) and at that point they’ll have more attorneys’ fees to tax because we made them come back for another hearing.  In theory, that’s true.  But let me ask you this – how often do you think they’ll actually re-set another hearing?  Once the bank gets a final judgment of foreclosure, do you think they’re going to bother coming back into court, for a separate hearing, with their expert, to present testimony about a few thousand dollars in attorneys’ fees?  Before you answer, bear in mind – often, the bank’s attorney, as well as the fee “expert,” are in a separate part of the state and will do anything possible to avoid having to travel to a hearing.  Perhaps better yet, Florida law typically does not permit attorneys to recover fees for the time spent traveling to a hearing, particularly an out-of-town hearing.  With this in mind, let me ask again – if you successfully prevent the inclusion of attorneys’ fees in a final judgment of foreclosure, do you really think two lawyers are going to travel across the state for an in-person hearing to try to tack on a few thousand dollars in attorneys’ fees (in a case where they’ve already obtained a foreclosure judgment)?  I sure don’t.  That’s a big reason why I file objections to fee awards by affidavit, such as the one here. 

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