DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL 1, INC. TRUST 2006-HE3, APPELLANT,
v.
MARY E. FORESTER, APPELLEE.
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Deutsche Bank, as trustee, appealed a summary judgment dismissing its third foreclosure action against Mary Forester on the same note and mortgage. The trial court ruled the action was barred by res judicata and the statute of limitations based on two prior involuntary dismissals with prejudice. The Florida District Court of Appeal reversed, holding that subsequent defaults occurring after dismissal of prior foreclosure actions create new causes of action not barred by res judicata.
The court held that while foreclosure actions on the same default may be barred by res judicata, subsequent and different defaults occurring after dismissal of an earlier foreclosure action create a new cause of action not subject to res judicata. The court reversed the summary judgment because Deutsche Bank alleged new and different defaults that occurred after the two prior dismissals.
[1] A second foreclosure action is timely if it is based on defaults occurring within the five years preceding the filing of the second suit, even if prior defaults occurred…
[2] Dismissal of a foreclosure action with prejudice does not bar a subsequent foreclosure action if the subsequent action is based on a new default occurring after the dismi…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue.”
Establishes the core distinction between barred actions on the same default versus permitted actions on subsequent defaults
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Join FLexlaw to unlock all legal intelligenceDeutsche Bank filed a third foreclosure action against Mary Forester on the same note and mortgage after two prior foreclosure actions had been involu…
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Appellant, Deutsche Bank National Trust Company, as Trustee for Morgan *781Stanley ABS Capital 1, Inc. Trust 2006-HE3 ("Appellant"), appeals from a summary final judgment entered in favor of Appellee, Mary E. Forester ("Appellee"), in the third foreclosure action between these parties on the same note and mortgage. The trial court concluded that Appellant's instant suit was barred by res judicata and the statute of limitations because the two prior suits were involuntarily dismissed with prejudice, which constituted adjudications on the merits, and "because the time has expired as to any date of default with the exception of subsequent defaults which are not appropriate in this case."
Appellant argues that the trial court erred in entering summary judgment in both respects, because the complaint alleged new and subsequent defaults in the instant foreclosure suit that occurred after the dismissal of the prior actions. Appellant also asserts that its action is not barred by the statute of limitations because it filed the complaint within five years of the alleged defaults. We agree with Appellant on both points and write only to address its res judicata argument.
"While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue." Singleton v. Greymar Assocs. , 882 So.2d 1004, 1007 (Fla. 2004) (citations omitted). "[E]ach subsequent default accruing after the dismissal of an earlier foreclosure action creates a new cause of action." Bartram v. U.S. Bank Nat'l Ass'n , 211 So.3d 1009, 1020 (Fla. 2016).
While Appellant has alleged some defaults in its most recent complaint that were dismissed in its prior actions, it also alleged new and different defaults that occurred after the two prior dismissals. As such, the trial court erred when it applied the doctrine of res judicata to these subsequent defaults. We therefore reverse the entry of summary judgment and remand for further proceedings.
REVERSED and REMANDED.
EVANDER and EISNAUGLE, JJ., and BASS, J., Associate Judge, concur.
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Citator
Authorities Cited
- Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009 (Fla. 2016)
- Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004)