final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Bay County. Keith Brace,
Jeffrey P. Whitton, Panama City, for Appellant.
Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort
Lauderdale, for Appellee.
Coty Bullock (the borrower) appeals the final judgment of
foreclosure entered in favor of Bayview Loan Servicing, LLC
(the servicer). The borrower argues that res judicata barred
this foreclosure action because the servicer had
unsuccessfully prosecuted a prior foreclosure action against
the borrower. We reject this argument and affirm the
2003, the borrower obtained a $112, 450 loan from Yale
Mortgage Company. The loan was evidenced by a promissory note
and secured by a mortgage on residential real property owned
by the borrower. The servicer is the current owner and holder
of the note and mortgage.
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 and thereafter. After a
non-jury trial, the trial court entered final judgment in
favor of the borrower. The final judgment stated in pertinent
part: "On 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
2015, the servicer filed another foreclosure action against
the borrower based on the borrower's failure to make the
loan payments due in July 2010 and thereafter. The borrower
filed an answer raising 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, the court entered a final judgment of
foreclosure in favor of the servicer.
did below, the borrower argues on appeal that the current
foreclosure action is barred by res judicata. The servicer
responds that res judicata does not apply here because the
current foreclosure action was based on a different period of
default than the prior action. Based on our de novo review,
agree with the servicer.
servicer's position is amply supported by settled case
law, including Bartram v. U.S. Bank National
Association in which the Florida Supreme Court
reaffirmed 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." 211
So.3d 1009, 1016 (Fla. 2016) (quoting Singleton v.
Greymar Assoc., 882 So.2d 1004, 1006-07 (Fla. 2004)).
The borrower acknowledges this holding, but argues that the
"not necessarily barred" language used by the Court