PHH MORTGAGE CORPORATION vs ERIC V. SCHREIBER A/K/A ERIC SCHREIBER AND KATHY SCHREIBER

• Court: District Court of Appeal of Florida
• Decided: July 15, 2022
• Docket: 21-1377
• 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

PHH MORTGAGE CORPORATION,

Appellant/Cross-Appellee,

v. Case No. 5D21-1377 LT Case No. 2019-CA-868-A

ERIC V. SCHREIBER A/K/A ERIC SCHREIBER AND KATHY SCHREIBER,

Appellees/Cross-Appellants.

________________________________/

Opinion filed July 15, 2022

Appeal from the Circuit Court for Citrus County, Carol A. Falvey, Judge.

Michael Smith, of Burr & Forman LLP, Orlando, for Appellant/Cross-Appellee.

David La Croix, McAlpin, for Appellees/Cross-Appellants.

PER CURIAM. In this second foreclosure action between the same parties, PHH

Mortgage Corporation (“Lender”) appeals a final judgment entered in

accordance with an order granting summary judgment in favor of Eric and

Kathy Schreiber (“Borrowers”). We affirm. The trial court correctly

concluded that collateral estoppel barred re-litigation of the issue of whether

Lender complied with HUD regulations before initiating foreclosure because

that same issue was previously litigated by the same parties and decided in

the prior case. See, e.g., Paresky v. Miami-Dade Cnty. Bd. of Cnty.

Comm’rs, 893 So. 2d 664, 665–66 (Fla. 3d DCA 2005) (“[C]ollateral estoppel

applies when the identical issue has been litigated between the same party

and the particular matter was fully litigated and determined in a contest that

results in a final decision of a court of competent jurisdiction.”). 1

In their cross appeal, Borrowers argue that the trial court erred by not

forever barring the Lender from seeking to foreclose on the subject

mortgage. This argument is without merit:

1 We agree with Lender that the trial court erred in concluding that the second foreclosure action was barred by res judicata. See, e.g., Provident Funding Assoc., L.P. v. MDTR, 257 So. 3d 1114, 1119 (Fla. 2d DCA 2018) (holding second foreclosure complaint alleging default period overlapping alleged default period in first foreclosure case not barred by res judicata because second default period included more recent defaults).

2 When a mortgage foreclosure action is involuntarily dismissed pursuant to Rule 1.420(b), either with or without prejudice, the effect of the involuntary dismissal is revocation of the acceleration, which then reinstates the mortgagor’s right to continue to make payments on the note and the right of the mortgagee, to seek acceleration and foreclosure based on the mortgagor’s subsequent defaults.

Bartram v. U.S. Bank, N.A., 211 So. 3d 1009, 1012 (Fla. 2016).

AFFIRMED.

EVANDER and HARRIS, JJ., concur.

SASSO, J., concurs in result only with opinion.

3 Case No. 5D21-1377 LT Case No. 2019-CA-00868-A SASSO, J., concurring in result.

I agree with the result reached by the majority, but for a different

reason. Although Lender correctly asserts this action was not barred by res

judicata because it alleged a different default period, Lender failed to

challenge the court’s reliance on collateral estoppel as a basis for summary

judgment. As a result, Lender has abandoned any argument as to whether

the court properly applied the collateral estoppel defense. See Doe v. Baptist

Primary Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (“A trial court’s

decision is presumed correct, thus an appellant who presents no argument

as to why a trial court’s ruling is incorrect on an issue has abandoned the

issue.” (internal citations omitted)). With that alternative basis for affirmance

uncontested, I agree the final judgment should be affirmed.