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Bullock v. Bayview Loan Servicing, LLC

Florida Court of Appeals, First District

June 28, 2019

Linda Coty Bullock, Appellant,
v.
Bayview Loan Servicing, LLC, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Bay County. Keith Brace, Judge.

          Jeffrey P. Whitton, Panama City, for Appellant.

          Alexis Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, for Appellee.

          WETHERELL, J.

         Linda 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 foreclosure judgment.

         Facts

         In 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.

         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 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 judgment.

         In 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.

         This appeal followed.

         Analysis

         As she did below, the borrower argues on appeal that the current foreclosure action is barred by res judicata.[1] 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, [2] we agree with the servicer.

         The 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 ...


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