DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TRUST MORTGAGE, LLC,

Appellant,

v.

DINA FERLANTI and ANTHONY FERLANTI,

Appellees.

No. 4D 15-1437

[June 1, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Eli Breger, Senior Judge, Judge; L.T. Case No. 

2014CA005887.

Thomas D. Graham, David Freedman, and Jeffrey B. Crockett of Coffey 

Burlington, P.L., Miami, for appellant.

Andrew M. Schwartz and Christopher Salivar of Andrew M. Schwartz, 

P.A., Boca Raton, for Appellee Anthony Ferlanti.

FORST, J.

Appellant Trust Mortgage, LLC brought a foreclosure action against 

Appellees Anthony and Dina Ferlanti. After Anthony Ferlanti prevailed on 

summary judgment, he moved for sanctions (payment of his attorneys’ 

fees) under section 57.105, Florida Statutes (2015). The trial court granted 

the motion for sanctions. Appellant argues, and we agree, that the trial 

court erred in granting the motion for sanctions. Accordingly, we reverse.

Background

In May 2014, Appellant brought a foreclosure action against Anthony 

Ferlanti and his wife, as well as several other parties. The suit alleged the 

wife had executed a note and mortgage payable to Appellant and had 

defaulted on her obligations thereunder. Attached to the complaint were 

copies of the note and mortgage, both of which listed only the wife as a 

borrower/mortgagor and were signed by only the wife. However, the first 

page of the mortgage has a checked box that states “If checked, refer to 

the attached Addendum herein, for additional Mortgagors, their signatures 
2

and acknowledgements.” No addendum was attached. 

Anthony Ferlanti moved for judgment on the pleadings, arguing that 

although he had an ownership interest in the property, he was entitled to 

judgment as a matter of law since he was not a signatory to the note or 

the mortgage. Anthony Ferlanti later moved for final summary judgment 

on the same basis.

Between his motions for judgment on the pleadings and for summary 

judgment, Anthony Ferlanti moved for sanctions pursuant to section 

57.105(1)(a), Florida Statutes, arguing that the Appellant and/or 

Appellant’s attorney knew or should have known that its claim “was not 

supported by the material facts necessary to establish the claim.” Anthony 

Ferlanti attached a copy of the “safe harbor” letter he allegedly sent to the 

Appellant as required by section 57.105(4).

On the day of the summary judgment hearing, Appellant moved to 

amend its complaint to add two counts seeking to reform the mortgage to 

reflect Anthony Ferlanti as a party and to create an equitable lien against 

Anthony Ferlanti’s interest. As explained in the motion, “page 1 of the 

subject mortgage clearly indicates that there are additional mortgagors 

incorporated in an attached addendum to the mortgage. It is [Appellant]’s 

reasonable and good faith belief that Anthony Ferlanti, being the Husband 

of Defendant Dina Ferlanti, is presumably one of the additional mortgagors 

referenced . . . .”

The trial court entered summary judgment in favor of Anthony Ferlanti

and gave Appellant fifteen days to amend its complaint to bring other 

claims against Anthony Ferlanti. Appellant took no action within this time 

period, apparently believing its prior motion to amend was sufficient.

The trial court held at least two hearings on the motion for sanctions. 

Anthony Ferlanti argued sanctions were appropriate as there was no legal 

theory under which Appellant could prevail against him, while Appellant 

argued sanctions were premature, as they had not been afforded discovery 

to seek factual proof of their claims. 

After the hearings, but prior to the trial court’s ruling on the motion for 

sanctions, Appellant filed a brief on its motion for leave to amend. 

Attached to this brief was a “signature addendum to security instrument”

that Appellant claims shows Anthony Ferlanti’s signature. 

Problematically, the notary acknowledgement on this page states that the 

person appearing before the notary was “Dina Ferlanti, a married woman.” 

However, the signature provided is clearly different than the signature 
3

purporting to be Dina Ferlanti’s on the mortgage document itself.

Three days later, the trial court entered an order summarily granting 

sanctions against Appellant, but denying sanctions against Appellant’s 

initial counsel. This appeal followed.

Analysis

This Court reviews a trial court’s order awarding section 57.105

attorneys’ fees for an abuse of discretion. Wapnick v. Veteran’s Council of 

Indian River Cty., Inc., 123 So. 3d 622, 624 (Fla. 4th DCA 2013).

Anthony Ferlanti was awarded a sanction of attorneys’ fees under 

section 57.105(1), Fla. Stat. (2014). That section states:

(1) Upon the court’s initiative or motion of any party, the court 

shall award a reasonable attorney’s fee, including 

prejudgment interest, to be paid to the prevailing party in 

equal amounts by the losing party and the losing party’s 

attorney on any claim or defense at any time during a civil 

proceeding or action in which the court finds that the losing 

party or the losing party’s attorney knew or should have 

known that a claim or defense when initially presented to the 

court or at any time before trial:

(a) Was not supported by the material facts necessary to 

establish the claim or defense; or

(b) Would not be supported by the application of thenexisting law to those material facts.

Id. “The [trial] court determines if the party or its counsel knew or should 

have known that the claim or defense asserted was not supported by the 

facts or an application of existing law.” Wapnick, 123 So. 3d at 624

(alteration in original) (quoting Asinmaz v. Semrau, 42 So. 3d 955, 957

(Fla. 4th DCA 2010)). 

To award fees under the statute, “the trial court must find that 

the action was ‘frivolous or so devoid of merit both on the facts 

and the law as to be completely untenable.[’]” Chue v. 

Lehman, 21 So.3d 890, 891–92 (Fla. 4th DCA 2009) (quoting

Murphy v. WISU Props., Ltd., 895 So.2d 1088, 1093–94 (Fla. 

3d DCA 2004)). Moreover, that finding “must be based upon 

substantial competent evidence presented to the court at the 

hearing on attorney’s fees or otherwise before the court and in 

the trial court record.” Yakavonis v. Dolphin Petroleum, Inc.,
4

934 So.2d 615, 618 (Fla. 4th DCA 2006) (quoting Weatherby 

Assocs., Inc. v. Ballack, 783 So.2d 1138, 1141 (Fla. 4th DCA 

2001)). 

Id. 

In this case, Anthony Ferlanti was included as a defendant in the 

foreclosure count, despite no allegations in the complaint that he was a 

signatory to the mortgage. However, as the Appellant later showed, there 

was at least some triable set of facts under which Anthony Ferlanti could 

be liable under the mortgage agreement. The face of the mortgage 

indicates that there was an additional signature page, and while that page 

was not attached, its absence does not indicate that a theory based on its 

existence, with Anthony Ferlanti’s signature on it, was “frivolous or so 

devoid of merit both on the facts and the law as to be completely 

untenable.” 

Anthony Ferlanti likens this case to Country Place Community Ass’n v. 

JP Morgan Mortgage Acquisition Corp., 51 So. 3d 1176 (Fla. 2d DCA 2010). 

In that case, a lender filed a foreclosure complaint and lost note count. Id. 

at 1177. Attached to the complaint was a note and mortgage showing 

other entities as the lender/mortgagee. Id. In response to discovery, the 

lender admitted it had no evidence showing it possessed the 

note/mortgage at the time of filing. Id. The defendant moved for summary 

judgment, arguing a lack of standing. Id. The lender failed to present any 

evidence or affidavits in opposition and summary judgment was granted 

in favor of the defendant. Id. The defendant then moved for fees under 

section 57.105. Id. at 1178. The trial court denied the fee sanction, 

finding that since the lender later obtained possession of a blank endorsed 

note showing it had standing to pursue the action, and had already 

obtained a default judgment against the primary defendant in the case, 

the lender had a viable cause of action. Id. The Second DCA reversed, 

holding that under the new version of section 57.105 (effective 1999), the 

lower standard for sanctions allowed for sanctions on individual 

unsupportable claims or defenses, regardless of whether the party might 

prevail in a new action, and that the lender’s complaint was unsupported 

by the necessary material facts since it lacked standing at the inception of 

the suit. Id. at 1180-81. 

Country Place is distinguishable from the case at hand. In Country 

Place, the plaintiff knew that there was no factual support for its claim and 

admitted as much in response to interrogatories. Here, on the other hand, 

Appellant had an objectively reasonable belief, based on the checked box 

on the mortgage instrument, that Anthony Ferlanti may have been a 
5

proper defendant in this case. Therefore, neither “the party [n]or its 

counsel knew or should have known that the claim or defense asserted 

was not supported by the facts or an application of existing law” at the 

time the complaint was filed. Wapnick, 123 So. 3d at 624 (quoting 

Asinmaz, 42 So. 3d at 956).

Appellant’s lack of concrete proof of that fact at the time of filing does 

not mean its complaint was frivolous. A party does not need to have 

conclusive evidence to prove its case at the time of filing in order to avoid 

sanctions. Instead, like here, where the party reasonably believes the 

factual basis for its claim exists, it is entitled to proceed with its claims 

and seek to prove those facts. If attempts to prove those facts are fruitless, 

that is still not cause for sanctions where the party’s initial belief was wellfounded. It is only in circumstances like Country Place where the party 

knew or should have known at the time of filing that the material facts 

were nonexistent that a claim is truly frivolous and worthy of sanctions. 

Conclusion

For the reasons set forth above, the trial court erred by granting 

Anthony Ferlanti’s motion for sanctions under section 57.105. We 

therefore reverse.

Reversed.

WARNER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.