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“The borrowers’ motion for fees is denied because the Bank of New York Mellon was not a party to the note and mortgage, and because the borrowers successfully argued that the Bank of New York Mellon was not entitled to enforce the instrument containing the attorney fee provision,” Fourth District Court of Appeal Judge Robert M. Gross wrote in a decision Feb. 7. The Sabidos’ attorney, Roy D. Oppenheim, suggested the ruling raised a red flag for foreclosure defense attorneys concerned they might not get paid after successfully representing clients in financial distress. “No one ever likes to see someone do good work and not get paid,” Oppenheim said. “It basically means that any bank can bring a foreclosure, whether they have standing or not, and not worry about there being consequences for such egregious conduct. They are basically being told that they can file these willy-nilly and, within the context of the case, they will not be subject to attorneys’ fees.” The decision in the Sabido case stems from an underlying dispute in which the bank sued as successor to lender JPMorgan Chase Bank N.A. The plaintiff’s case fizzled on appeal when the defendants successfully claimed the bank failed to show how the note and mortgage came into its possession. The Sabidos signed loan documents in 2006 with Washington Mutual Bank F.A.
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