Sandra A. Forero and William L. Forero v. Green Tree Servicing, LLC
223 So. 3d 440
Fla. Dist. Ct. App.2017Background
- William Forero executed a promissory note and mortgage on Dec. 3, 2002; payments stopped with the Dec. 1, 2008 installment and no payments were made thereafter.
- Bank of America filed foreclosure suits in Feb. 2010 and Feb. 2013, each voluntarily dismissed (the second dismissal operates as an adjudication on the merits under Fla. R. Civ. P. 1.420(a)(1)).
- Mortgage was assigned to Green Tree (later merged into Ditech), which sent default/acceleration notices in July 2013 and filed a third foreclosure action in Apr. 2014 alleging default from Dec. 1, 2008 and subsequent payments.
- Foreros defended on res judicata grounds (two-dismissal rule) and statute-of-limitations grounds (Fla. Stat. § 95.11(2)(c) — five years).
- At trial Ditech proved standing and that no payments had been made after Nov. 2008; trial court entered foreclosure for $158,459.30 but denied interest/fees for lack of proof.
Issues
| Issue | Plaintiff's Argument (Forero) | Defendant's Argument (Ditech) | Held |
|---|---|---|---|
| Whether the third foreclosure is barred by res judicata under rule 1.420(a)(1) / two-dismissal rule | The two prior voluntary dismissals operate as adjudications on the merits and bar a subsequent suit on the same note | Successive suits alleging later, separate missed installments are distinct defaults and not barred by res judicata | Not barred — successive defaults post-dating the earlier suits create distinct causes of action (Singleton/Olympia rationale) |
| Whether the action is time-barred by the 5-year statute of limitations (§ 95.11(2)(c)) | The original default (Dec. 2008) was over five years before the 2014 complaint, so foreclosure is untimely | Each missed installment is a new default and triggers a new limitations period; complaint alleging continuous nonpayment pleads actionable defaults within five years | Not barred — statute runs from each new default; complaint alleging no payments since 2008 included defaults within five years (Bartram) |
| Whether plaintiff proved standing and notice requirements | Foreros argued defects in proof of standing and compliance with notice | Ditech presented assignment, evidence of servicing and default notices; trial court found no error | Affirmed — record supported standing and compliance as to issues raised |
| Scope of recovery given prior dismissals and long series of missed payments | Foreros suggested prior dismissals and the passage of time should limit enforceable installments | Ditech sought foreclosure of accelerated balance based on defaults through filing date; court limited recovery where Ditech failed to prove interest/fees | Affirmed foreclosure amount; court denied interest/fees due to lack of proof; res judicata only affects specific installments adjudicated previously |
Key Cases Cited
- Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004) (successive foreclosure suits based on separate, subsequent defaults are not necessarily barred by res judicata)
- Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009 (Fla. 2016) (statute of limitations runs from each new default; each missed installment can start a new limitations period)
- Olympia Mortgage Corp. v. Pugh, 774 So. 2d 863 (Fla. 4th DCA 2000) (two-dismissal rule does not automatically bar subsequent suit where later defaults arise)
- Bollettieri Resort Villas Condo. Ass’n v. Bank of New York Mellon, 198 So. 3d 1140 (Fla. 2d DCA 2016) (complaint alleging initial default over five years earlier but asserting continuous nonpayment is sufficient to state timely claim for later missed payments)
- Nolan v. MIA Real Holdings, LLC, 185 So. 3d 1275 (Fla. 4th DCA 2016) (distinguishable—reversal where third action relied on same breach without identifying differing default dates)