240 So. 3d 729
Fla. Dist. Ct. App.2018Background
- BNY filed an initial foreclosure in Dec 2009 alleging default from March 1, 2009; that suit was dismissed with prejudice in Sept 2013.
- In June 2015 BNY filed a second foreclosure complaint alleging default beginning August 1, 2010 and continuing through the filing date.
- Desai defended, arguing the second suit was time-barred because it relied on defaults occurring before the prior dismissal and that interest accruing while the first suit was pending could not be recovered.
- BNY argued it properly re‑accelerated the debt and alleged continuing defaults within the five‑year limitations period, so the 2015 suit was timely and recoverable.
- The trial court entered final judgment for BNY; Desai appealed raising statute‑of‑limitations and related preclusion arguments.
Issues
| Issue | Plaintiff's Argument (Desai) | Defendant's Argument (BNY) | Held |
|---|---|---|---|
| Whether the second foreclosure was barred by the statute of limitations | Second suit impermissible because based on defaults before dismissal of first suit | Second suit based on separate, continuing defaults (from Aug 2010) within five‑year limitations | Second suit was timely; action limited to defaults within five years of filing so not barred |
| Whether lender may recover interest that accrued while first foreclosure was pending | Bartram requires that lender cannot seek amounts that accrued during pendency of first suit | Bartram does not preclude recovery of amounts that became due while prior suit was pending if based on subsequent default | Court rejected Desai’s argument; lender could seek recovery for defaults within limitations period |
| Whether involuntary dismissal with prejudice barred relitigation under res judicata/collateral estoppel | Dismissal with prejudice prevents relitigation of defaults and amounts previously accelerated | Dismissal was not on merits as to subsequent distinct defaults; res judicata/collateral estoppel do not apply | Res judicata/collateral estoppel did not bar second suit because it involved distinct, subsequent defaults |
| Whether a foreclosure predicated on a continuing default theory is permissible | (Implied) Second suit impermissible if acceleration previously occurred | Continuing default alleged allows foreclosure on any missed payments within limitations period | Pleading and proving continuing default supported foreclosure on defaults within five years of filing |
Key Cases Cited
- Bartram v. U.S. Bank, N.A., [citation="211 So. 3d 1009"] (Fla. 2016) (dismissal of an action that accelerated payment does not bar a later foreclosure so long as the later suit is based on subsequent default within limitations)
- Depicciotto v. Nationstar Mortg. LLC, [citation="225 So. 3d 390"] (Fla. 4th DCA 2017) (foreclosure not time‑barred where separate, continuing defaults alleged within five‑year period)
- Desylvester v. Bank of N.Y. Mellon, [citation="219 So. 3d 1016"] (Fla. 2d DCA 2017) (same—continuing defaults within limitations permit foreclosure)
- Evergrene Partners, Inc. v. Citibank, N.A., [citation="143 So. 3d 954"] (Fla. 4th DCA 2014) (same principle on continuing defaults and limitations)
- Singleton v. Greymar Assocs., [citation="882 So. 2d 1004"] (Fla. 2004) (res judicata does not necessarily bar successive foreclosure suits when predicated on different defaults)
- Aronowitz v. Home Diagnostics, Inc., [citation="174 So. 3d 1062"] (Fla. 4th DCA 2015) (collateral estoppel requires that the specific issue was actually litigated and decided previously)
- Kebreau v. Bayview Loan Serv., LLC, [citation="225 So. 3d 255"] (Fla. 4th DCA 2017) (suit may proceed where alleged defaults fell within five‑year limitations period)
- Wells Fargo Bank, NA v. BH‑NV Invs. 1, LLC, [citation="230 So. 3d 60"] (Fla. 3d DCA 2017) (lender may file later suit based on subsequent default during pendency of earlier suit)
- Bollettieri Resort Villas Condo. Ass'n, Inc. v. Bank of N.Y. Mellon, [citation="198 So. 3d 1140"] (Fla. 2d DCA 2016) (continuing default allegation suffices to foreclose on any missed payments since the breach)
- Collazo v. HSBC Bank USA, N.A., [citation="213 So. 3d 1012"] (Fla. 3d DCA 2016) (reversed where plaintiff relied on the same default date outside the five‑year limitations period)
- Hicks v. Wells Fargo Bank, N.A., [citation="178 So. 3d 957"] (Fla. 5th DCA 2015) (trial court erred where counsel stipulated to a default date outside limitations)