Federal National v. Cook

251 So. 3d 235

• Court: District Court of Appeal of Florida
• Decided: June 11, 2018
• Docket: 5D17-1369
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

FEDERAL NATIONAL MORTGAGE ASSOCIATION,

Appellant,

v. Case No. 5D17-1369

CAROL COOK A/K/A CAROL E. COOK,

Appellee.

________________________________/

Opinion filed June 15, 2018

Appeal from the Circuit Court for Brevard County, Lisa Davidson, Judge.

Kathleen E. Angione, of Kahane & Associates, P.A., Plantation, for Appellant.

J. Christopher Crowder, of Faro & Crowder, P.A., Melbourne, for Appellee.

PER CURIAM.

Federal National Mortgage Association (“FNMA”) appeals an order granting final

summary judgment in favor of Carol Cook and the order denying its motion for rehearing.

Because the trial court erred in entering summary judgment on the grounds of res

judicata, we reverse and remand for further proceedings.

In 2009, Aurora Loan Services, LLC filed a complaint to foreclose on Cook’s

mortgage. The complaint alleged that Cook defaulted on the June 1, 2009 payment and

all payments due thereafter, and sought the principal amount due of $138,201.79. FNMA subsequently became the substitute plaintiff. After a non-jury trial, the court entered a

final judgment in favor of Cook because FNMA failed to establish that a notice of

acceleration had been sent.

FNMA filed a second foreclosure complaint in 2014. The complaint alleged default

on the September 1, 2009 payment and all subsequent payments, and sought

$137,792.47 as the principal amount due. As one of her affirmative defenses, Cook

alleged that res judicata barred the 2014 case based on the 2009 final judgment. The trial

court agreed and entered final summary judgment in favor of Cook. That was error.

In Singleton v. Greymar Associates, 882 So. 2d 1004, 1008 (Fla. 2004), the Florida

Supreme Court addressed res judicata in the foreclosure context and held that “res

judicata does not necessarily bar successive foreclosure suits, regardless of whether or

not the mortgagee sought to accelerate payments on the note in the first suit.” In that

case, a “subsequent and separate alleged default created a new and independent right

in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.”

882 So. 2d at 1008. This court has relied on Singleton to conclude that dismissal of a

prior foreclosure suit, even with prejudice, “does not preclude a new foreclosure action

based on different acts or dates of default.” Wells Fargo Bank, N.A. v. Robinson, 168 So.

3d 1279, 1280 (Fla. 5th DCA 2015).

We reject Cook’s argument that because both complaints alleged default on “all

subsequent payments,” res judicata barred the instant case. That language is not

dispositive of the issue because FNMA alleged a different and subsequent default date

in the 2014 case. See, e.g., Christiana Tr. v. Taveras, 186 So. 3d 50, 51–53 (Fla. 5th

DCA 2016) (noting that res judicata did not bar mortgagee from enforcing its rights under

2 mortgage based on future defaults after mortgagee’s prior foreclosure action was

dismissed). In the 2009 case, FNMA alleged default on June 1, 2009, and all subsequent

payments; in the 2014 case, FNMA asserted default on September 1, 2009, and all

subsequent payments. FNMA also alleged different principal amounts due in both cases.

Thus, the subsequent and different default in the 2014 case presented a separate and

distinct issue from that presented in the 2009 case for purposes of res judicata. See

Singleton, 882 So. 2d. at 1008; Robinson, 168 So. 3d at 1280; Taveras, 186 So. 3d at

51–53. The inclusion of “and all subsequent payments” does not alter this result.

Accordingly, the trial court erred in entering final summary judgment based on a finding

that res judicata barred the 2014 case.

REVERSED AND REMANDED.

COHEN, C.J., PALMER and BERGER, JJ., concur.