BRANDON DEPICCIOTTO and DAWN DEPICCIOTTO v. NATIONSTAR MORTGAGE, LLC
225 So. 3d 390
| Fla. Dist. Ct. App. | 2017Background
- Brandon and Dawn DePicciotto were defendants in a third foreclosure action filed by Nationstar Mortgage in March 2014 alleging mortgage default and seeking foreclosure.
- The original foreclosure was filed by Aurora in January 2009 and was involuntarily dismissed with prejudice; Nationstar later pursued the loan.
- DePicciottos argued the 2014 suit was time-barred because the alleged initial default date was February 1, 2009, more than five years before filing.
- They also argued the earlier dismissal with prejudice operated as an adjudication on the merits, so res judicata/collateral estoppel barred relitigation.
- Nationstar alleged and proved continuing and subsequent defaults occurring within five years before the 2014 filing.
- The Fourth District affirmed the final judgment of foreclosure, holding the suit was timely based on continuing defaults and that preclusion doctrines did not apply to subsequent, different defaults.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2014 foreclosure was barred by the five-year statute of limitations | 2009 default date made 2014 filing untimely | Complaint alleged continuing/subsequent defaults within five years, so timely | Court: Not barred; continuing defaults within five years permit suit (statute satisfied) |
| Whether prior involuntary dismissal with prejudice precluded the 2014 action (res judicata/collateral estoppel) | Earlier dismissal adjudicated the issues; relitigation barred | 2014 suit was based on subsequent and different defaults—distinct issues | Court: Preclusion doctrines do not apply; successive foreclosure for new defaults allowed |
Key Cases Cited
- Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009 (Fla. 2016) (holding a subsequent foreclosure may proceed when based on defaults within the limitations period)
- Collazo v. HSBC Bank USA, N.A., 213 So. 3d 1012 (Fla. 3d DCA 2016) (reversing where plaintiff relied on a single stale default date beyond statute)
- Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004) (res judicata does not necessarily bar successive foreclosures based on different defaults)
- Aronowitz v. Home Diagnostics, Inc., 174 So. 3d 1062 (Fla. 4th DCA 2015) (collateral estoppel requires the specific issue to have been actually litigated and decided)
- Bollettieri Resort Villas Condo. Ass’n, Inc. v. Bank of N.Y. Mellon, 198 So. 3d 1140 (Fla. 2d DCA 2016) (a complaint alleging a continuous state of default can support foreclosure on missed payments within the limitations period)