Florida Court holds second foreclosure not barred by res judicata where different default date is alleged

A Florida Appellate Court in Bullock v. Bayview Loan Servicing, LLC, No. 1D18-3130 (Fla. Dist. Ct. App. June 28, 2019) upheld a foreclosure judgment in a second foreclosure which alleged a later default date than the prior action which the servicer lost. The court affirmed the holding that the second foreclosure was not barred by res judicata because the defaults were different.

In 2010, the servicer filed a foreclosure action against the borrower based on the borrower’s failure to make the loan payments due in February 2008. The trial court entered final judgment in favor of the borrower finding that “[o]n the evidence presented, the Court finds that [the servicer] has failed to prove that it has standing to enforce the note sued upon and has failed to prove by competent evidence the amount allegedly due on said note.” The judgement ordered that the servicer “take nothing and that [the borrower] shall go hence without day.” The servicer did not appeal the final judgment.

Instead, the servicer filed another foreclosure action based on the borrower’s failure to make the loan payments due in July 2010 and thereafter. The borrower raised affirmative defenses, including res judicata based on the final judgment in the prior foreclosure case. The trial court rejected the res judicata defense, and after a non-jury trial, entered a final judgment of foreclosure in favor of the servicer.

The decision was affirmed on appeal. Simply put, the second foreclosure was not barred by res judicata because the current foreclosure action was based on a different period of default than the prior action. The Florida Supreme Court in Bartram v. U.S. Bank National Association, 211 So. 3d 1009 (Fla. 2016) had previously held that when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, “the case is not necessarily barred by res judicata.”

The borrower acknowledged Bartram but insisted that the “not necessarily barred” language used by the Court means there are circumstances where a subsequent foreclosure action is barred by res judicata and that this case was one of those cases. The reason being is that the “take nothing” disposition of the prior foreclosure action equates to a determination that there was nothing due on the loan. Not so, said the court. There was no affirmative finding that the borrower no longer owed anything on the loan. The court simply found that the servicer failed to adequately prove the amount due based on the default alleged in the first case. The unrebutted evidence presented at the non-jury trial in the second case established that the borrower has not made any payments on the loan for more than a decade. Accordingly, even if the borrower’s interpretation of the prior final judgment was correct, it would be inequitable to apply the doctrine of res judicata to bar the foreclosure action in this case.


  • James Noonan

    Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.

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