HSBC BANK USA, NATIONAL ASSOCIATION, as trustee for DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST, SERIES 2007-OA5, Appellant,
CLARE NELSON a/k/a CLARE BEEMAN; RANDY BEEMAN a/k/a RANDOLPH S. BEEMAN; EMILY BEEMAN f/k/a JANE TENANT; and NATIONAL CITY BANK, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Charles E.
J. Brotman and Douglas A. Goldin of Locke Lord LLP, West Palm
Beach, for Appellant.
P. Stopa of Stopa Law Firm, Tampa, for Appellees Clare and
Randolph Beeman. No appearance for remaining Appellees.
Bank USA, N.A., as trustee for Deutsche Alt-A Securities
Mortgage Loan Trust, Series 2007-OA5 (HSBC), appeals an order
dismissing HSBC's foreclosure action without prejudice.
Because the trial court erred in concluding that Bartram
v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla.
2016), required dismissal of HSBC's action, we reverse.
August 8, 2008, HSBC filed a foreclosure complaint alleging
that Claire Nelson (a.k.a. Claire Beeman) and Randolph Beeman
(the Beemans) had failed to make the mortgage payment
"due April 1, 2008[, ] and all subsequent
payments." On May 6, 2011, the trial court dismissed the
action without prejudice based on HSBC's failure to
retain counsel and failure to appear at a case management
February 7, 2013, HSBC filed the action at issue in this
appeal. In the new complaint, HSBC again alleged that the
Beemans had failed to make the mortgage payment "due
April 1, 2008[, ] and all subsequent payments." The
Beemans filed a motion for summary judgment, arguing that,
per Bartram, "the action is barred by
Plaintiff's failure to base this action on default dates
post-dating the dismissal of the 2008 action." The
Beemans also argued that they were entitled to summary
judgment based on HSBC's asserted failure to comply with
paragraph 22 of the mortgage, and they filed evidence in
support of that argument.
by the Bartram argument, the trial court granted the
Beemans' motion for summary judgment and granted the
specific relief that they requested- dismissal of the second
action, again without prejudice. The court expressly declined
to address the paragraph 22 argument.
review de novo the trial court's dismissal of HSBC's
February 7, 2013, action on statute-of-limitations grounds,
cf. Xavier v. Leviev Boymelgreen Marquis Developers,
LLC, 117 So.3d 773, 775 (Fla. 3d DCA 2012) ("A
trial court's ruling on a motion to dismiss based on the
statute of limitations is a question of law reviewed de
novo."), and we conclude that the trial court erred in
dismissing that action based on Bartram. In that
opinion, the supreme court stated that "a dismissal
without prejudice would allow a mortgagee to bring another
foreclosure action premised on the same default as
long as the action was brought within five years of the
default." Bartram, 211 So.3d at 1020 (emphasis
added). The Beemans do not dispute that after the dismissal
without prejudice of the August 8, 2008, action, HSBC filed
its February 7, 2013, foreclosure action within five years of
the April 1, 2008, default.
HSBC's February 7, 2013, complaint alleged a continuing
default "in that the payment due April 1, 2008[, ]
and all subsequent payments have not been
made." (Emphasis added.) Thus, regardless of whether
HSBC's August 8, 2008, complaint was dismissed with or
without prejudice, its February 7, 2013, complaint alleged a
separate and distinct default entitling it to pursue
foreclosure, notwithstanding that that complaint also still
alleged the pre-dismissal defaults. See Desylvester v.
Bank of N.Y. Mellon ex rel. Holders of Alt. Loan Tr. 2005-62,
Mortg. Pass-Through Certificates Series 2005-62, 219
So.3d 1016, 1020 (Fla. 2d DCA 2017) ("We recognize that
in the underlying action the Bank alleged that the borrowers
defaulted on the note by failing to make the payment due on
October 1, 2008, 'and all subsequent payments due
thereafter.' Granted, the October 1, 2008, date was the
date alleged as the date of the initial default in the first
foreclosure action, and this date was outside the period of
the five-year statute of limitations. Nevertheless, 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."), rev.
denied, No. SC17-1312, 2018 WL 1136532 (Fla. Mar. 2,
2018); HSBC Bank USA, Nat'l Ass'n, for Registered
Holders of Nomura Home Equity Home Loan, Inc. v. Estate of
Petercen, 227 So.3d 640, 642-44 (Fla. 4th DCA 2017)
(rejecting trial court's conclusion that Bartram
bars subsequent foreclosure action when complaint alleges
same beginning date of continuing default as alleged in prior
foreclosure action that was dismissed); Forero v. Green
Tree Servicing, LLC, 223 So.3d 440, 443-44 (Fla. 1st DCA
2017) (explaining that although complaint at issue and
complaints in two previously dismissed actions all alleged
"December 1, 2008[, ] and all subsequent payments"
as default period, actual defaults upon which previous
actions were based did not include additional defaults at
issue in third action, even though same language was used in
each complaint to describe default period). Accordingly, the
trial court in this case erred in concluding that
Bartram compelled dismissal.
holding that reversal is warranted on that basis, we decline
the Beemans' invitation to apply the tipsy coachman
doctrine to affirm based on HSBC's asserted failure to
comply with paragraph 22 of the mortgage agreement. As an
initial matter, we note that the trial court expressly
declined to address this argument, and this court
"cannot employ the tipsy coachman rule where a lower
court has not made factual findings on an issue and it would
be inappropriate for an appellate court to do so."
Salazar v. Hometeam Pest Def., Inc., 230 So.3d 619,
622 (Fla. 2d DCA 2017) (quoting Bueno v. Workman, 20
So.3d 993, 998 (Fla. 4th DCA 2009)); see also Bryant v.
Fla. Parole Comm'n, 965 So.2d 825, 825
(Fla. 1st DCA 2007) ("We decline the Parole
Commission's invitation to employ the 'tipsy
coachman' rule . . . . The circuit court made no factual
findings . . ., and it would be inappropriate for us to do so
in the context of this appeal.").
fundamentally, however, that argument is outside the scope of
our review on this appeal. As noted above, in granting the
Beemans' "motion for summary judgment, " the
trial court granted them the exact relief that they
requested: it dismissed HSBC's complaint without
prejudice. But as this court has observed, "Motions to
dismiss and for summary judgment are not interchangeable, and
one may not be substituted for another." U.S. Bank
Nat'l Ass'n ex rel. Holders of Home Equity Asset Tr.
2002-4 Home Equity Pass-Through Certificates, Series 2002-4
v. Doepker, 223 So.3d 1083, 1084 (Fla. 2d DCA 2017)
(citing Holland v. Anheuser Busch, Inc., 643 So.2d
621, 622-23 (Fla. 2d DCA 1994)). And "the character of a
motion will depend upon its grounds or contents, and not on
its title." Jones v. Denmark, 259 So.2d 198,
200 n.1 (Fla. 3d DCA 1972).
notwithstanding the trial court's granting of the
Beemans' "motion for summary judgment, " we are
actually here-at the Beemans' behest-on appeal from the
court's order of dismissal, and our review is confined to
the four corners of the February 7, 2013, complaint and the
arguments pertaining thereto. See Green v. Cottrell,
204 So.3d 22, 30 (Fla. 2016) ("The review of an order
granting a motion to dismiss is confined to the four corners
of the complaint."). Because the Beemans' paragraph
22 argument necessarily would require us to consider the
affidavits and other evidence filed in conjunction with the