FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-1678

LT Case No. 2022-CA-030366

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U.S. BANK NATIONAL 

ASSOCIATION as INDENTURE 

TRUSTEE on Behalf of and with 

Respect to AJAX MORTGAGE 

LOAN TRUST 2018-B MORTGAGE -

BACKED NOTES,

Appellant,

v.

CHERISH LYNN VADNEY a/k/a 

CHERISH LYNN UNDERWOOD, as 

PERSONAL REPRESENTATIVE of 

the ESTATE OF ROBERT VADNEY,

a/k/a ROBERT VADNEY,

DECEASED.

Appellee.

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On appeal from the Circuit Court for Brevard County.

Curt Jacobus, Judge.

Steve D. Tran, of eXL Legal, PLLC, St. Petersburg, for Appellant.

Jay R. Thakkar, of Goldman, Monaghan, Thakkar & Bettin, P.A., 

Cocoa, and Richard Shuster, of Shuster & Saben, LLC, Satellite 

Beach, for Appellee.

May 24, 2024
2

KILBANE, J.

U.S. Bank National Association as Indenture Trustee on 

behalf of and with respect to Ajax Mortgage Loan Trust 2018-B 

Mortgage-Backed Notes (“U.S. Bank”) appeals the trial court’s 

order granting Cherish Lynn Vadney’s, as personal representative 

of the estate of Roberta Vadney (“the Estate”), motion to dismiss. 

On appeal, U.S. Bank argues that the trial court should have

stayed the case rather than dismiss it. We agree and reverse.1

Facts

In May 2022, U.S. Bank filed a damages action for breach of 

promissory note regarding a residential property located in 

Brevard County, Florida (“the Present Action”) against the Estate

for $129,890.54, plus interest. The Present Action did not seek 

foreclosure. Instead, the complaint alleged that in 2018 U.S. 

Bank’s predecessor in interest, MTGLQ Investors, L.P., filed a 

foreclosure complaint in a separate Brevard County case related 

to the same note and mortgage (“2018 Foreclosure Action”). 

During the pendency of the 2018 Foreclosure Action, the borrower

passed away. As such, a probate case was opened, and Cherish 

Lynn Vadney was appointed as personal representative for the 

Estate.

In the Present Action, the Estate filed a motion to stay, abate, 

show cause or in the alternative, dismiss. The Estate argued, inter 

alia, that the 2018 Foreclosure Action was still being litigated 

when U.S. Bank filed the Present Action. The Estate asked the 

trial court to dismiss the Present Action or to stay or abate it until 

the 2018 Foreclosure Action is adjudicated to judgment or 

dismissal.

1 Because this is an appeal from an order granting dismissal, 

we review the order directly and do not treat the appeal as a 

petition for writ of certiorari. See Fla. R. App. P. 9.030(b)(1)(A), 

9.110(h); cf. Inphynet Cont. Servs., Inc. v. Matthews, 196 So. 3d 

449, 462 (Fla. 4th DCA 2016) (treating appeal as petition for writ 

of certiorari because order denying motion to stay was a non-final, 

non-appealable order).
3

At the hearing on the Estate’s motion, the Estate explained 

that U.S. Bank filed a motion for leave to amend its complaint in 

the 2018 Foreclosure Action to add the exact same claim on the 

note as was being litigated in the Present Action. U.S. Bank 

confirmed that it filed said motion, but the trial court in the 2018 

Foreclosure Action had not heard or granted it. Moreover, the 

Estate was actively opposing U.S. Bank’s motion.

Because the 2018 Foreclosure Action was pending before a 

different judge, the trial court in the Present Action found that it 

lacked subject-matter jurisdiction since the court in the 2018 

Foreclosure Action had already exercised jurisdiction over the 

same parties and the same note and mortgage. As a result, the 

court determined that dismissal was appropriate rather than stay 

or abatement.

Analysis

“[A]n order granting a motion to dismiss presents a pure 

question of law and is subject to de novo review.” Abitbol v. 

Benarroch, 273 So. 3d 147, 153 (Fla. 3d DCA 2019) (citing Siegle v. 

Progressive Consumers Ins. Co., 819 So. 2d 732 (Fla. 2002)). 

However, a trial court’s decision to order or deny a stay is reviewed 

for abuse of discretion. Id. (citing Pilevsky v. Morgans Hotel Grp. 

Mgmt., LLC, 961 So. 2d 1032 (Fla. 3d DCA 2007)).

In the Present Action, the trial court incorrectly determined 

that the 2018 Foreclosure Action rendered it without subjectmatter jurisdiction. “[S]ubject-matter jurisdiction concerns the 

power of the trial court to deal with a class of cases to which a 

particular case belongs.” Cunningham v. Standard Guar. Ins. Co., 

630 So. 2d 179, 181 (Fla. 1994) (citing Lovett v. Lovett, 112 So. 768 

(Fla. 1927)). The claim in the Present Action is within the class of 

cases over which the trial court has subject-matter jurisdiction. 

See Art. V, § 5(b), Fla. Const.; § 26.012(2), Fla. Stat. (2021).

The issue here is not one of jurisdiction. Rather, this case

involves the principle of priority as a matter of comity.2 “It is the 

2 While generally applied when cases are pending in a federal 

court and state court, in courts of two different states, or in 
4

well-established law of Florida that where two courts have 

concurrent jurisdiction of a cause of action, the first court to 

exercise jurisdiction has the exclusive right to hear all issues or 

questions arising in the case.” Hirsch v. DiGaetano, 732 So. 2d 

1177, 1177–78 (Fla. 5th DCA 1999). “In applying the principle of 

priority, the pivotal question is whether the second-filed action is 

sufficiently similar in parties and issues as to be unnecessarily 

duplicative of the prior-filed proceeding.” Inphynet Cont. Servs., 

196 So. 3d at 464 (citing Pilevsky, 961 So. 2d at 1035).

Here, the 2018 Foreclosure Action and the Present Action 

involve a note and mortgage regarding the same residential 

property. That said, one action seeks foreclosure and the other is 

suing on the note. “A party ‘has the right to pursue both a claim 

for foreclosure of the mortgage and a claim for damages on the 

note.’ However, ‘[i]t is axiomatic that a party can only recover once 

on the same debt.” Bonita Real Est. Partners, LLC v. SLF IV 

Lending, L.P., 222 So. 3d 647, 652 (Fla. 2d DCA 2017) (alteration 

in original) (citation omitted) (quoting Hammond v. Kingsley Asset 

Mgmt., LLC, 144 So. 3d 673, 675 (Fla. 2d DCA 2014)). This right 

is statutorily granted:

In all suits for the foreclosure of mortgages heretofore or 

hereafter executed the entry of a deficiency decree for any 

portion of a deficiency, should one exist, shall be within 

the sound discretion of the court . . . . The complainant 

shall also have the right to sue at common law to recover 

such deficiency, unless the court in the foreclosure action 

has granted or denied a claim for a deficiency judgment.

different circuits within this state, see Inphynet Cont. Servs., 196 

So. 3d at 465, the principle of priority is also applicable to cases 

filed in the same circuit. See Flynn v. Flynn, 132 So. 3d 904, 906 

(Fla. 2d DCA 2014). “The rationale for the application of the 

principle of priority, as a matter of comity, is the avoidance of 

wasting judicial resources in duplicative and unnecessary 

proceedings and the risk of inconsistent judgments regarding the 

application of law to the same factual dispute.” Inphynet Cont.

Servs., 196 So. 3d at 464.
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§ 702.06, Fla. Stat. (2021) (emphasis added). As the Florida 

Supreme Court explained:

[T]he statute plainly allows the foreclosure court to 

adjudicate the deficiency claim but also gives the 

complainant “the right to sue at common law to recover 

such deficiency, unless the court in the foreclosure action 

has granted or denied a claim for a deficiency judgment.” 

. . . Therefore, this statute plainly precludes the separate 

action only where the foreclosure court has actually ruled 

on the claim.

Dyck-O’Neal, Inc. v. Lanham, 257 So. 3d 1, 2 (Fla. 2018).

Thus, U.S. Bank has a right to bring both a foreclosure claim

and a claim for damages on the note. However, the outcome of the 

2018 Foreclosure Action directly impacts whether U.S. Bank may 

proceed with the Present Action. See Bonita Real Est. Partners, 

222 So. 3d at 652 (“Once the party has obtained a foreclosure sale 

of the property, it cannot collect on the note other than to pursue 

the appropriate deficiency amount.”). While a foreclosure claim 

and a claim for damages on the note are not identical causes of 

action,

[c]omplete identity—of parties or causes of action—is not 

required for a stay; substantial similarity is sufficient.

“[I]t is sufficient that the two actions involve a single set 

of facts and that resolution of the one case will resolve 

many of the issues involved in the subsequently filed 

case.”

Spacebox Dover, LLC v. LSREF2 Baron LLC, 112 So. 3d 751, 752 

(Fla. 2d DCA 2013) (second alteration in original) (citation 

omitted) (quoting In re Guardianship of Morrison, 972 So. 2d 905, 

910 (Fla. 2d DCA 2007)). As such, a stay is appropriate pending 

the outcome of the 2018 Foreclosure Action.3

3 As it has been recognized, courts have frequently “used the 

terms ‘stay’ and ‘abate’ interchangeably, but they are not the 

same.” Homeowners Prop. & Cas. Ins. Co., Inc. v. Hurchalla, 171 

So. 3d 230, 232 (Fla. 4th DCA 2015). “An important difference 
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Although trial courts are afforded discretion when considering 

whether to stay a case, “this discretionary power is not without 

limitation.” Spacebox Dover, 112 So. 3d at 752. Absent special 

circumstances, such as undue delay, “a trial court abuses its 

discretion in refusing to grant a stay based on the principle of 

priority.” Id. at 752–53 (quoting In re Guardianship of Morrison, 

972 So. 2d at 910). Here, no such circumstances are alleged. 

Conclusion

The trial court erred when it dismissed the Present Action

based on a lack of subject-matter jurisdiction and abused its 

discretion when it did not stay the proceedings. Accordingly, we 

reverse and remand with instructions to reinstate the Present 

Action and stay the proceedings.4

REVERSED and REMANDED with instructions.

MAKAR and HARRIS, JJ., concur.

between abating a suit and staying it is that the former terminates 

the action, necessitating a refiling of it, whereas the latter merely 

pauses proceedings in the stayed suit until the happening of a 

contingency.” Flaig ex rel. Palmcrest Homes of Tampa Bay, LLC 

v. Sullivan, 141 So. 3d 1274, 1275–76 (Fla. 2d DCA 2014) (citing 

Perry v. Fireman’s Fund Ins. Co., 379 So. 2d 429, 430 (Fla. 2d DCA 

1980)). Additionally, abatement requires complete identity of 

parties and causes of action. Sauder v. Rayman, 800 So. 2d 355, 

358 (Fla. 4th DCA 2001) (citing REWJB Gas Invs. v. Land O’Sun 

Realty, Ltd., 643 So. 2d 1107, 1108 (Fla. 4th DCA 1994)).

4 Nothing in this opinion shall be interpreted as applying to 

or discussing the propriety of U.S. Bank’s pending motion for leave 

to amend in the 2018 Foreclosure Action.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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