final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Peter D. Blanc, Judge; L.T. Case No. 2014
A. Bonfiglio, Boynton Beach, for appellants.
M. Wallace of Akerman LLP, Tallahassee, William P. Heller of
Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman
LLP, West Palm Beach, for Appellee Nationstar Mortgage, LLC.
CYNAMON, ABBY, ASSOCIATE JUDGE.
Brandon and Dawn DePicciotto appeal from a final judgment of
foreclosure entered in favor of Nationstar Mortgage, LLC
("Nationstar") in this third foreclosure action.
Appellants raise two issues on appeal. First, appellants
assert that the trial court erred in entering final judgment
in favor of Nationstar as the statute of limitations had
expired five years after the February 1, 2009 alleged default
date, therefore making Nationstar's March 3, 2014
foreclosure filing untimely. Second, appellants assert that
the trial court erred in entering final judgment in favor of
Nationstar because the involuntary dismissal with prejudice
of the first foreclosure action filed by Aurora in January
2009 acted as an adjudication on the merits. Appellants
assert that the doctrines of res judicata and collateral
estoppel prevent Nationstar from filing this suit and
relitigating any issues. We affirm the trial court on both
Nationstar's foreclosure action was not barred by the
statute of limitations where it alleged and proved separate
and continuing defaults that fell within the five years
preceding the filing of this suit. See Bartram v. U.S.
Bank Nat'l Ass'n, 211 So.3d 1009, 1021 (Fla.
2016) ("Once there were future defaults, however, the
Bank had the right to file a subsequent foreclosure
action-and to seek acceleration of all sums due under the
note-so long as the foreclosure action was based on a
subsequent default, and the statute of limitations had not
run on that particular default."); Kebreau v.
Bayview Loan Servicing, LLC, 4D16-2010, 2017 WL 2983999
(Fla. 4th DCA July 12, 2017) (holding that "the
complaint was not barred by the statute of limitations where
it alleged continuing defaults"); Klebanoff v. Bank
of New York Mellon, 5D16-1637, 2017 WL 2818078, at *3
(Fla. 5th DCA June 30, 2017) ("Because the Bank alleged
and proved that the subject mortgage was in a continuous
state of default, which included defaults within the
five-year statute of limitations, its action was not barred,
even if the initial default was alleged to have occurred more
than five years prior to the filing of the complaint.");
Desylvester v. Bank of New York Mellon, No.
2D15-5053, 2017 WL 2562370, at *3 (Fla. 2d DCA June 14, 2017)
(concluding that "the allegations of the complaint in
the underlying action that the borrowers were in a continuing
state of default at the time of the filing of the complaint
was sufficient to satisfy the five-year statute of
limitations"); Bollettieri Resort Villas Condo.
Ass'n, Inc. v. Bank of N.Y. Mellon, 198 So.3d 1140,
1142 (Fla. 2d DCA 2016) (complaint alleging a continuing
state of default "was sufficient to establish that
foreclosure could be based on any of the missed payments
since the initial breach"), rev. granted, No.
SC16-1680 (Fla. Nov. 2, 2016).
distinguish cases where the plaintiff in a foreclosure action
relied upon a specific default date that was beyond the
statute of limitations period. See Collazo v. HSBC Bank
USA, N.A., 213 So.3d 1012, 1013 (Fla. 3d DCA 2016)
(reversing foreclosure judgment where plaintiff
"asserted the same payment default date and basis for
acceleration in both the 2008 and 2014 complaints, a date
over five years preceding the commencement of the 2014 case
in the circuit court"); Hicks v. Wells Fargo Bank,
N.A., 178 So.3d 957, 959 (Fla. 5th DCA 2015) (where
trial counsel for the parties stipulated to a default date
that was outside of the five-year statute of limitations
period, the trial court erred in failing to dismiss the
we find no merit to appellants' contention that res
judicata and collateral estoppel prevented litigation and
adjudication of the issues in this iteration of the case by
Nationstar. Neither res judicata nor collateral estoppel is
applicable in this case because Nationstar's 2014 action
was predicated upon "subsequent and different defaults,
" which presented a "separate and distinct
issue." See Singleton v. Greymar Associates,
882 So.2d 1004, 1007-08 (Fla. 2004) (concluding that
"the doctrine of res judicata does not necessarily bar
successive foreclosure suits, " and explaining that
while "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"); Aronowitz v. Home
Diagnostics, Inc., 174 So.3d 1062, 1066 (Fla. 4th DCA
2015) (citation omitted) (for collateral estoppel to apply,
the specific issue must have been "actually litigated
and decided in the former suit").
foregoing reasons, we affirm the final judgment.
Damoorgian and Kuntz, ...