final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-11220, Mavel Ruiz, Judge.
Sessions, Fishman, Nathan & Israel, LLC, and Jocelyn C.
Smith and Dayle Van Hoose (Tampa), for appellant.
Defense Law, and Bruce B. Baldwin, for appellee.
SCALES, LINDSEY and LOBREE, JJ.
plaintiff below, National Collegiate Student Loan Trust
2007-3 ("lender"), appeals a final summary judgment
entered in favor of appellee, defendant below, Delvis De Leon
("borrower"). Because the res judicata doctrine is
inapplicable in this case, we reverse the summary judgment
and remand for further proceedings.
2007, borrower obtained a $25, 000 student loan from lender.
In 2009, borrower filed a Chapter 7 bankruptcy proceeding in
the United States Bankruptcy Court for the Southern District
of Florida. While lender was a scheduled creditor in
borrower's bankruptcy case, lender did not file a proof
of claim or initiate an adversarial proceeding regarding the
loan in the bankruptcy case. In September 2009, the
bankruptcy court granted borrower a discharge of certain of
his debts, but the discharge order made clear that "most
student loans" are not subject to discharge.
April 2014, after borrower had defaulted on the loan, lender
brought the instant action against borrower alleging borrower
was in breach of his loan agreement. Borrower answered
lender's complaint asserting, as affirmative defenses,
lender's lack of standing, expiration of the statute of
limitations, and res judicata. Borrower's res judicata
defense was premised upon borrower's earlier Chapter 7
discharge of "all debts in the bankruptcy estate."
Shortly before trial was scheduled to begin in the case,
borrower sought summary judgment based on his res judicata
defense. On June 21, 2018, the trial court entered an order
granting borrower's summary judgment motion. In its
order, the trial court concluded:
Pursuant to The Educational Research Institute, Inc. v.
Rickard [sic], 924 So.2d 40 (Fla. 3d DCA 2006),
Defendant's 2009 federal bankruptcy, in which Plaintiff
was a creditor on express notice but filed no proof of claim,
precludes the relitigation of the claims that could have been
raised in the context of the bankruptcy proceedings.
appealed the order and the September 18, 2018 final summary
judgment entered pursuant to the order. We reverse.
argues, as he did below, that, irrespective of the
dischargeability of the student loan, lender could
have brought an adversary proceeding in that Chapter 7
bankruptcy action both to liquidate the amount owed and to
confirm the debt's dischargeability. Borrower argues
that, because lender did nothing in the bankruptcy action
regarding the debt, the doctrine of res judicata precludes
lender's instant action to recover the
debt. The entirety of borrower's argument is
premised upon the following sentence from this Court's
decision in Education Resources Institute, Inc. v.
Rickard, 924 So.2d 40, 41 (Fla. 3d DCA 2006):
"Under the federal law of res judicata, ...