HSBC Bank USA, National Ass'n ex rel. Registered Holders of Nomura Home Equity Home Loan, Inc. v. Estate of Petercen
227 So. 3d 640
Fla. Dist. Ct. App.2017Background
- Bank filed a foreclosure complaint in Sept. 2015 alleging default as of Nov. 1, 2009 and "all subsequent payments." An attorney ad litem (representing unknown heirs/estate) answered and pleaded statute-of-limitations as an affirmative defense, noting a prior 2011 foreclosure by the Bank dismissed in May 2013.
- The Bank obtained leave to amend, defendants did not respond to the amended complaint, and no one appeared at bench trial.
- At trial the Bank acknowledged the 2009 default date and the earlier dismissal, proposed recalculating recoverable amounts to exclude defaults older than five years, and presented evidence and recalculated figures reflecting only amounts within five years of the 2015 suit.
- Three days after trial the court dismissed the 2015 action, concluding the prior dismissal barred a subsequent suit alleging the same single default date, and cited precedent (including a Fifth District opinion) to support dismissal.
- Bank moved for rehearing arguing defendants had the burden to prove the limitations defense (no evidence was presented at trial), the earlier dismissal was without prejudice, and that recovery could be limited to defaults within five years; rehearing was denied.
- Appellate court reversed based on Florida Supreme Court precedent in Bartram (and related district court decisions): a dismissed foreclosure revokes acceleration, each missed payment is a separate default, statute of limitations runs from each new default, and a complaint alleging continuing defaults can proceed with recovery limited to amounts within the five-year statute where appropriate. Case remanded for foreclosure judgment consistent with that rule; trial court may take further evidence on amounts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a subsequent foreclosure is barred when it repeats the same single default date alleged in an earlier, dismissed foreclosure | Bank: dismissal without prejudice revokes acceleration; each missed payment is a continuing default; suit may proceed and recovery can be limited to amounts within five years | Defendants (via ad litem): prior suit dismissal bars relitigation/res judicata and statute of limitations bars the 2015 suit because original default was in 2009 | Reversed dismissal — Bartram controls: dismissal revokes acceleration; each missed payment gives rise to a new limitations period; a complaint alleging continuing defaults is not barred and recovery may be limited to amounts within five years of filing |
| Who bears burden to prove statute-of-limitations/res judicata at trial | Bank: defendants bore the burden to prove limitations/res judicata and presented no evidence at trial | Defendants: asserted limitations/res judicata as affirmative defenses in their answer/report | Held: Court erred to dismiss where defendants presented no evidence at trial and Bartram precludes blanket dismissal when continuing defaults are alleged |
| Effect of prior dismissal being without prejudice on mortgagee’s rights | Bank: dismissal without prejudice allows refiling and does not preclude recovery for defaults within limitations period | Defendants: relied on cited precedent to argue dismissal barred subsequent suit | Held: Dismissal without prejudice revokes acceleration and allows a successive foreclosure based on subsequent defaults or recoverable defaults within five years |
| Whether trial court may limit judgment to defaults within five years when complaint pleads continuous defaults | Bank: recalculated judgment excluding >5-year-old defaults is appropriate | Defendants: argued dismissal barred relitigation entirely | Held: Trial court should enter foreclosure judgment consistent with limiting recovery to defaults within five-year statute where proven; may take further evidence on amount |
Key Cases Cited
- Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009 (Fla. 2016) (holds that a dismissal revokes acceleration, each missed payment restarts limitations, and continuing defaults permit successive foreclosure within five years)
- Singleton v. Greymar Assocs., 882 So.2d 1004 (Fla. 2004) (recognizes each new default as a separate cause of action in foreclosure equity context)
- Collazo v. HSBC Bank, USA, N.A., 213 So.3d 1012 (Fla. 3d DCA 2016) (addressed effect of prior dismissal and default-date pleading; discussed limits on recovery)
- Olympia Mortgage Corp. v. Pugh, 774 So.2d 863 (Fla. 4th DCA 2000) (earlier district-court decisions cited by trial court on preclusion in foreclosure context)
- Desylvester v. Bank of N.Y. Mellon, 219 So.3d 1016 (Fla. 2d DCA 2017) (applies Bartram to allow subsequent foreclosure where complaint shows continuing default and recoverable defaults within five years)
- Forero v. Green Tree Servicing, LLC, 223 So.3d 440 (Fla. 1st DCA 2017) (applies Bartram: res judicata and limitations defenses failed where successive suits involve continuing, different missed payments)
- Depicciotto v. Nationstar Mortgage LLC, 225 So.3d 390 (Fla. 4th DCA 2017) (holds foreclosure not barred where plaintiff proved separate continuing defaults within five-year period)