CHARLES G. NOLAN, APPELLANT,
v.
MIA REAL HOLDINGS, LLC, APPELLEE

Fla. 4th DCA | 2016-02-24
No. 4D15-666
WARNER and LEVINE, JJ,, concur.
185 So. 3d 1275 Florida District Court of Appeal, Fourth District (2016) Caution
Cited by 4 cases

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Synopsis

The Florida Fourth District Court of Appeal reversed a foreclosure judgment, holding that under Rule 1.420(a)(1), successive voluntary dismissals by different assignees of the same note constitute an adjudication on the merits that bars further actions on the same claim. The court applied the "two dismissal" rule to prevent multiple foreclosure attempts based on the same breach across different note holders.


Holding

The court held that for purposes of Rule 1.420(a)(1), successive note assignees must be treated as the same "plaintiff" because an assignee stands in the procedural shoes of the assignor. Therefore, the second voluntary dismissal operated as an adjudication on the merits, barring the third foreclosure action based on the same breach.


Headnotes

[1] A voluntary dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same cl…

[2] For purposes of Florida Rule of Civil Procedure 1.420(a)(1), an assignee of a note stands in the procedural shoes of the assignor.

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Key Quotes

“[A] notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.”

States the operative rule under Florida Rule of Civil Procedure 1.420(a)(1) that governs the case

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Facts & Procedural History

Flagstar Bank filed a foreclosure action against a homeowner and voluntarily dismissed it. Flagstar then assigned the note and mortgage to DKR Mortgag…

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Opinion of the Court
GROSS, J.

GROSS, J.

We reverse the final judgment of foreclosure because the action was barred by the “two dismissal” rule of Florida Rule of Civil Procedure 1.420(a)(1). In successive ■actions, two different plaintiff/note holders sought to foreclose based on the same breach. Each plaintiff filed a voluntary dismissal of its lawsuit. For the purpose of rule 1.420(a)(1), we hold that the two noteholders — the original plaintiff and the subsequent assignee of the note — were the same “plaintiff’.under the rule, so that the *1276second voluntary dismissal triggered an “adjudication on the merits.” Id.

Flagstar Bank filed a foreclosure action against the homeowner, which it voluntarily dismissed. Flagstar assigned the note and mortgage,, to DKR Mortgage, which then filed a second foreclosure action against the homeowner, on the same note, alleging the same breach. MIA Real Holdings substituted as the party plaintiff in that action after it purchased the note from DKR Mortgage. MIA voluntarily dismissed the second action. Subsequently, MIA filed a third complaint on the same note, alleging the same breach, which resulted in the final judgment on appeal.

“[A] notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.” Fla. R. Civ.. P. 1.420(a)(1). Under this rule, “a plaintiff may voluntarily dismiss his or her lawsuit at practically any time —-without prejudice however to plaintiffs commencing a wholly new lawsuit against the same defendant if the right to do so has not been exercised before.” Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 68 (Fla.1978) (emphasis added).

An assignor of a note “conveys to the assignee his or her rights and interest” in the note assigned. Dove v. McCormick, 698 So.2d 585, 589 (Fla. 5th DCA 1997). As a matter of substantive law, the “as-signee thereafter stands in the shoes of the assignor and may enforce the contract against the original obligor in his own name.” Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr. Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2003). It follows that here, MIA stands in the procedural shoes of Flagstar, the first plaintiff/assign- or which took a voluntary dismissal. See Variety Children’s Hosp. v. Mt. Sinai Hosp. of Greater Miami, Inc., 448 So.2d 546, 548 (Fla. 3d DCA 1984) (affirming final summary judgment in. favor of appel-lees because the hospital twice voluntarily dismissed before initiating a third action, noting that “the dismissal of the first two actions operates as a bar to the filing of a third complaint by Variety and by those in privity with Variety, including its insurers.”) (emphasis added). Any other interpretation of the rule could lead to as many voluntary dismissals as there are assignments and this is an area where notes are often assigned and reassigned. See, e.g., Salmon v. Foreclosed Asset Sales & Transfer P’ship, 162 So.3d 1142, 1143 (Fla. 4th DCA 2015) (observing that the note at issue wás “bundled, securitized, and' indorsed to a series of holders”). The two voluntary dismissals, taken by two different plaintiffs but involving the same, note and the same breach, required that the second dismissal operate as an adjudication on the merits; if it wanted to pursue its claim for non-payment, MIA was required to refile a lawsuit against the homeowners alleging a new and separate breach by non-payment on the note. See Singleton v. Greymar Assocs., 882 So.2d 1004, 1006-07 (Fla.2004).

Reversed and Remanded.

WARNER and LEVINE, JJ,, concur.


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Citator

Cited By

  • Forero v. Green Tree Servicing, LLC, 223 So. 3d 440 (Fla. 1st DCA 2017)
    …with the notice of [*443] default requirements in the note and mortgage. The record shows no error by the trial court on these issues and we affirm on these grounds without further comment. . We note the opinion in Nolan v. MIA Real Holdings, LLC, 185 So. 3d 1275 (Fla. 4th DCA 2016), where the appellate court reversed the judgment of foreclosure in the third action on the same note and mortgage, However, the opinion stated that the third action was upon "the same breach" of the promissory note without specif…
  • Villalona v. 21ST Mortg. Corp., 195 So. 3d 1199 (Fla. 4th DCA 2016)
    …because the second plaintiff, as assignee, acquired not only the rights, but also the obligations, of the first plaintiff, as assignor. This reasoning is consistent with the reasoning of one of our recent cases. In Nolan v. MIA Real Holdings, LLC, 185 So. 3d 1275 (Fla. 4th DCA 2016), we applied rule 1.420(a)(l)’s “two dismissal” provision to bar the third holder of a note from bringing a third foreclosure action against the defendants based upon the same default. We reasoned: Any other interpretation of the…

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