HSBC Bank avoided a potential attorney’s fee judgment when the trial judge deemed abandoned a borrower’s post-dismissal motion for costs and attorneys’ fees. In an opinion released this morning, Florida’s Fourth District Court of Appeal affirmed that ruling in the case of Domenic Grosso a/k/a Domenic L. Grosso v. HSBC Bank USA, N.A., 4th DCA Case 4D14-3971 (Apr. 27, 2016).  Deutsche Bank received the same treatment in Felice Berenson v. Deutsche Bank National Trust Company, 4th DCA Case No. 4D14-3985 (Apr. 27, 2016) (borrower’s motion “languished” for 14 months), and Ramon Ramos and Miriam Ramos v. Deutsche Bank National Trust Company, 4th DCA Case No. 4D14-3981 (Apr. 27, 2016) (borrowers’ motion “languished” for 22 months).


HSBC sued its borrower for foreclosure, but filed a voluntarily dismissal and the case was closed. The borrower filed a motion for costs and attorneys’ fees, but did not file supporting affidavits, set the motion for hearing, or take any other record activity for 18 months.  After reviewing the docket, the trial judge, Judge Richard Oftedal, ordered that the case be administratively closed and that any post-trial motions that had not been set for hearing be deemed abandoned.

Get Lucky

The borrower argued on appeal that Judge Oftedal’s ruling constituted a dismissal for lack of prosecution, but without compliance with Florida Rule of Civil Procedure 1.420. The Fourth DCA disagreed, finding that Rule 1.420 applies only to “actions” and that the borrower’s motion was “simply a motion.”


The appellate court went on to confirm that the trial court did, in fact, have the inherent authority to deem the borrower’s motion abandoned under the circumstances. The Fourth DCA concluded that Judge Oftedal’s presumption was “not erroneous” and that it is not an abuse of discretion to deem abandoned a motion that “was left to languish on the docket for eighteen months.”

Abandoned Papers

Having taken a voluntary dismissal, HSBC was not the prevailing party and very well may have been liable for costs and attorneys’ fees. However, the borrower’s inaction prevented him from having any chance of making HSBC reimburse him for the costs and attorneys’ fees he incurred in defending the case.  So, time does mean something and it shouldn’t be that easy to forget about the fees.  But, “even the losers get lucky sometimes.”

David Greene is a commercial litigation partner in Fox Rothschild’s West Palm Beach office.  His practice focuses primarily on banking litigation, real estate litigation, title insurance litigation, and construction litigation. You can reach David at 561-804-4441 or