HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR LUMINENT MORTGAGE TRUST 2007-2, Appellant,
JULIO R. SANCHEZ a/k/a JULIO RAMIREZ SANCHEZ and GINA CARVALLO, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry J. Stone, Senior Judge; L.T. Case No.
Michael K. Winston, Dean A. Morande and Alana Zorrilla-Gaston
of Carlton Fields Jorden Burt, P.A., West Palm Beach, for
Matthew Bavaro and Chase E. Jenkins of Loan Lawyers, LLC,
Fort Lauderdale, for appellees.
ON MOTION FOR CLARIFICATION
grant the motion for clarification, withdraw the previous
opinion, and substitute the following.
appeal involves successive foreclosure lawsuits filed by HSBC
Bank against the Appellees (the "borrowers"). The
trial court found that the Bank's complaint failed to
state a cause of action because the default date alleged fell
during the pendency of its prior foreclosure action. Because
the Bank alleged a series of payment defaults which were
successive causes of action, some accruing during the
pendency of the first suit and some accruing after its
dismissal, we reverse.
case, the first foreclosure suit was filed in 2009 and
judgment was entered in favor of the borrowers on April
9, 2014 (with prejudice). The second foreclosure suit
was filed in 2015, alleging that the borrowers were in
default for failing to make the payment due under their note
on May 1, 2011, and all subsequent payments.
Following a non-jury trial, the court found in favor of the
Bank on all issues, and would have entered judgment in favor
of the Bank but for language found in Bartram v. U.S.
Bank Nat'l Ass'n, 211 So.3d 1009 (Fla. 2016),
[The lender] was not precluded by the statute of limitations
from filing a subsequent foreclosure action based on payment
defaults occurring subsequent to the dismissal of the
first foreclosure action, as long as the alleged
subsequent default occurred within five years of the
subsequent foreclosure action.
Id. at 1012 (emphasis added). The trial court
interpreted this language to mean that a second or subsequent
foreclosure complaint failed to state a cause of action where
it alleged a payment default occurring prior to the
dismissal of the first foreclosure action.
issue in Bartram was not whether the lender stated a
cause of action for foreclosure. The issue was whether the
lender retained its "ability to enforce its rights"
under a note and mortgage that were the subject matter of a
previously dismissed foreclosure action brought by the
lender. Id. at 1015. In Bartram, the lender
acknowledged "that it could not seek to foreclose the
Mortgage based on Bartram's defaults prior to the first
foreclosure action, but could seek foreclosure on defaults
occurring subsequent to the dismissal of the first
foreclosure action." Id. at 1015. It was in
this procedural posture that the court found "each
subsequent default accruing after the dismissal of an earlier
foreclosure action creates a new cause of action."
Id. at 1020. Bartram did not address
whether a lender can recover unpaid interest, fees, and costs
accrued during the pendency of an earlier foreclosure action.
that the Bank here stated a cause of action for foreclosure
by alleging a continuing series of missed payments (separate
and distinct defaults) occurring both while the first cause
of action was pending and continuing after the first cause of
action was dismissed, and where the initial default alleged
in the subsequent suit occurred after the default upon which
the initial foreclosure action was based. See PHH
Mortgage Corp. v. Parish, 43 Fla.L.Weekly D242a (Fla. 2d
DCA Jan. 26, 2018) (quoting Bartram, 311 So.3d at
1019); see also Desai v. Bank of New York Mellon Trust
Co., 43 Fla.L.Weekly D527d (Fla. 4th DCA March 7, 2018)
(finding the bank was not barred by either the statute of
limitations or the doctrines of res judicata or
collateral estoppel from recovering in a subsequent
foreclosure action damages accrued while the initial
foreclosure action was pending).
reverse the order of dismissal, remand for entry of judgment
in favor of the Bank and further proceedings consistent with
and remanded for ...