ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of Monica Vives' motion for rehearing from an order denying her motion for appellate attorneys' fees, it is ordered that said motion be and the same hereby is denied.

SHEPHERD, C.J., and WELLS, J., concur. ROTHENBERG, J., dissents.

SHEPHERD, J. concurring.

Appellant-borrower, Monica Vives, contends on rehearing that the court overlooked or misapplied the reciprocality provision, found in section 57.105(7) of the Florida Statutes (2012),1 by failing to award her attorney fees as the prevailing party on appeal in this mortgage foreclosure action. I disagree.

Ms. Vives moved for attorney fees based not upon the fee provision in the mortgage, but rather a fee provision2 in the promissory note, which the mortgage secured. There is a difference. Bank of New York Mellon v. Reyes, 38 Fla. L. Weekly D665, D666 (Fla. 3d DCA Mar. 20, 2013) (citing Taylor v. Am. Nat'l Bank of Pensacola, 63 Fla. 631, 57 So. 678 (1912) (quoting Thorp v. Mindeman, 101 N.W. 417, 420 (Wis. 1904) ("The promise to pay is one distinct agreement, and, . . . [t]he pledge of real estate to secure that promise is another . . . .")). See also Deutsche Bank Nat'l Trust Co. v. Clarke, 87 So.3d 58, 61 (Fla. 4th DCA 2012). A mortgage is incidental to the note and serves to secure the debt evidenced therein. See Deutsche Bank, 87 So. 3d at 61. Upon default, the mortgagee may elect to exercise its rights under either document without barring the alternate remedy. 55 Am Jur. 2d Mortgages § 452 (2012); see also Royal Palm Corp. Ctr. Ass'n v. PNC Bank, 89 So.3d 923, 929-30 (Fla. 4th DCA 2012) (recognizing that foreclosure of a mortgage and suit on a promissory note are separate and distinct remedies available to a lender-mortgagee upon default); Sims v. New Falls Corp., 37 So.3d 358, 360 (Fla. 3d DCA 2010). In this case, the lender chose to proceed under the mortgage.3

Some of our sister courts have conflated the two documents to suggest the reciprocality provision of section 57.105(7) of the Florida Statutes affords attorney fees in a mortgage foreclosure action on the strength of a unilateral fee provision in a promissory note. See United States v. Wonders, 86 So.3d 544 (Fla. 2d DCA 2012); Shepheard v. Deutsche Bank Trust Co., 38 So.3d 825 (Fla. 5th DCA 2010); Landry v. Countrywide Home Loans, Inc., 731 So.2d 137 (Fla. 1st DCA 1999). However, these cases are bereft of analysis and in one case, United States v. Wonders, dicta. Moreover, the above cases do not consider the unique characteristics that inhere in a promissory note—transferability, indifference to who actually holds the note and how he obtained it for bearer instruments, and limitations on defenses against a claim by a "holder in due course"—which appear at first glance to distinguish suits on promissory notes from the type of contract litigation the drafters of section 57.105(7) probably had in mind when the provision first appeared in the Florida Statutes in 1988. See Laws of Fla., ch. 88-160 § 1 (1988).

In this case, however, the fact the lender did not bring suit on the promissory note is sufficient.

ROTHENBERG, J., (dissenting).

I respectfully disagree with the majority's decision to deny rehearing. The relevant pleadings dictate that Ms. Vives, as the prevailing party on appeal, is entitled to an award of reasonable attorney's fees. Although the concurring opinion is not binding authority, I have chosen to address it because I respectfully disagree.

The concurring opinion begins by noting that Ms. Vives moved for fees under the reciprocality provision set forth in section 57.105(7) "based not upon a fee provision in the mortgage, but rather a fee provision in the promissory note." (footnote omitted). The concurring opinion then concludes that Ms. Vives is precluded from relying on the fee provision in the promissory note because "the lender chose to proceed under the mortgage" rather than the promissory note. If the concurring opinion was correct in its characterization of the lender's lawsuit, I would agree with its conclusion. A careful review of the lender's complaint, however, reveals that the concurring opinion is mistaken, as Wells Fargo expressly sought relief under the promissory note.

Although Count II begins by stating, "[T]his is an action to foreclose a mortgage on real property," that count goes on to set forth the amounts due and owing under the promissory note:

(Emphasis added). More importantly, in the "WHEREFORE" clause of its complaint, Wells Fargo requested that the trial court "ascertain and determine the sums of money due and payable to the Plaintiff from the Defendants," and requested a "deficiency judgment[] if the proceeds of the foreclosure sale are insufficient to pay Plaintiff's claim." Finally, in the final judgment of foreclosure, after calculating the principal and interest "due under the note secured by the mortgage," (emphasis added), the trial court reserved jurisdiction with respect to a possible "deficiency judgment[]."

In Arvelo v. Park Finance of Broward, Inc., 15 So.3d 660 (Fla. 3d DCA 2009), this Court made clear that the "portion of an indebtedness which is sought as a `deficiency' following a creditor's disposition of personal property held as collateral is merely part of a debt evidenced by a promissory note or an installment contract." Id. at 662 (emphasis added); see also Capital Bank v. Needle, 596 So.2d 1134, 1136 (Fla. 4th DCA 1992) (holding that, under the doctrine of res judicata, "where a party seeks a foreclosure and a deficiency judgment for failure to pay on a promissory note, and there is an actual adjudication on the merits of the claim for deficiency, that party cannot proceed on a new action based on the same promissory note"). Specifically, a deficiency compensates the lender for any portion of the debt created by a promissory note that exceeds the value of the collateral secured by the lender's mortgage. Thus, because a deficiency, by definition, compensates for debt not covered by the lender's mortgage, it follows that a deficiency flows directly from the promissory note.

Accordingly, in my view, Wells Fargo's express prayer for a deficiency forecloses the concurring opinion's conclusion that Wells Fargo's lawsuit was limited to merely seeking the foreclosure of its mortgage on Ms. Vives' property. In praying for a deficiency, Wells Fargo necessarily sought relief under the promissory note, and thereby triggered the promissory note's attorney's fee provision, which is made reciprocal by section 57.105(7) of the Florida Statutes (2012). Thus, Ms. Vives, as a prevailing party on appeal, should be awarded reasonable attorney's fees. I, therefore, would grant rehearing and grant Ms. Vives' motion for an award of reasonable attorney's fees, and I respectfully disagree with the majority's contrary conclusion.