[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-11621

Non-Argument Calendar

________________________

D.C. Docket No. 9:14-cv-80265-KAM

STANLEY STREICHER, 

MARSHA STREICHER, 

 Plaintiffs-Appellants,

 versus

U.S. BANK NATIONAL ASSOCIATION, 

U.S. BANK NATIONAL ASSOCIATION AS SUCCESSOR 

TRUSTEE OF THE WELLS FARGO ASSET SECURITIES 

CORPORATION, 

Mortgage Pass-Through Certificates 2005-AR16, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(December 21, 2016)

Case: 16-11621 Date Filed: 12/21/2016 Page: 1 of 7 
2

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM: 

Stanley and Marsha Streicher appeal the district court’s order denying their 

motion for summary judgment and granting summary judgment to the defendants. 

After careful review, we affirm. 

I.

In June 2010, a mortgage foreclosure action was brought against the 

Streichers in Florida state court. According to the complaint, the party that brought 

the foreclosure action against the Streichers was U.S. Bank National Association as 

Successor Trustee to Wachovia Bank, National Association, as Trustee for Wells 

Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates Series 

2005-AR16 (“U.S. Bank”). Although U.S. Bank was the only named plaintiff in 

the foreclosure action, Wells Fargo Bank, N.A. (“Wells Fargo”), the mortgage 

servicer for U.S. Bank, sought to bring the suit on U.S. Bank’s behalf. At trial,

U.S. Bank made no appearance and Wells Fargo litigated in its place. After the 

close of Wells Fargo’s evidence, the state court granted the Streichers’ motion for 

involuntary dismissal. The state court dismissed the case on the ground that Wells 

Fargo lacked standing because it failed to prove that U.S. Bank authorized it to 

bring suit on U.S. Bank’s behalf. 

Case: 16-11621 Date Filed: 12/21/2016 Page: 2 of 7 
3

The Streichers then filed this suit in state court against U.S. Bank, and U.S. 

Bank removed the case to federal court.

1 The Streichers seek a declaratory 

judgment that the state court’s dismissal of the foreclosure action has preclusive 

effect on any future actions by U.S. Bank to enforce the promissory note 

underlying their mortgage. In plain English, they are asking the federal court to 

bar U.S. Bank from collecting the amount the Streichers allegedly owe on their 

mortgage, on the ground that the state court determined that Wells Fargo was not 

the proper party to bring the original foreclosure action against them. 

Both parties moved for summary judgment. The Streichers are entitled to 

summary judgment (and U.S. Bank is not) if the state court’s dismissal of the 

foreclosure action has preclusive effect as a matter of law, also known as res 

judicata. Under Florida law, res judicata may apply only if there has been a prior 

adjudication “on the merits.”2

 Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004)

(per curium) (quoting Kent v. Sutker, 40 So. 2d 145, 147 (Fla. 1949)); see also

Vasquez v. YII Shipping Co., 692 F.3d 1192, 1199 (11th Cir. 2012). Thus, we 

 

1 The Streichers’ operative complaint names U.S. Bank as a defendant in its capacity as 

Trustee and in its individual capacity. We refer to both collectively as “U.S. Bank.” 

2 In addition to the requirement that the earlier action be adjudicated on the merits, 

Florida law also requires that “four identities” be present. See Topps, 865 So. 2d at 1255 (“The 

doctrine of res judicata applies when four identities are present: (1) identity of the thing sued for; 

(2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) 

identity of the quality of the persons for or against whom the claim is made.”). Because the state 

court action was not decided on the merits, we do not reach the issue of whether the “four 

identities” are satisfied. 

Case: 16-11621 Date Filed: 12/21/2016 Page: 3 of 7 
4

must decide whether, under Florida law, dismissal of a foreclosure action for lack 

of standing constitutes an adjudication on the merits such that it triggers res 

judicata. The district court found that it does not. The Streichers appeal that 

decision.

II.

Whether to apply the doctrine of res judicata is a question we review de 

novo. Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 

2004). When deciding the preclusive effect of a state court judgment, we must 

give that judgment the same preclusive effect that “another court of that State 

would give [it].” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 

293, 125 S. Ct. 1517, 1527 (2005) (quotation omitted) (citing the Full Faith and 

Credit Act, 28 U.S.C. § 1738). Thus, we look to what the Florida courts have said 

about whether dismissal of a foreclosure action for lack of standing constitutes an 

adjudication on the merits for purposes of res judicata. Because the Florida 

Supreme Court has not addressed this question, we turn to the Florida appellate 

courts. See Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000)

(“Absent a decision by the highest state court or persuasive indication that it would 

decide the issue differently, federal courts follow decisions of intermediate 

appellate courts in applying state law.”); Pardo v. State, 596 So. 2d 665, 666 

Case: 16-11621 Date Filed: 12/21/2016 Page: 4 of 7 
5

(Fla. 1992) (“[T]he decisions of the district courts of appeal represent the law of 

Florida unless and until they are overruled by this Court.” (quotation omitted)). 

The Florida Fifth District Court of Appeal recently decided the precise issue 

before us in this case. See Brown v. M & T Bank, 183 So. 3d 1270 (Fla. Dist. Ct. 

App. 2016). In Brown, the court considered “[w]hether the dismissal of a 

foreclosure action for lack of standing operates as an adjudication on the merits for 

purposes of res judicata.” Id. at 1270. The court held it does not. Id. 

We must apply the Brown decision unless there is “persuasive indication 

that [the Florida Supreme Court] would decide the issue differently.” Galindo, 203 

F.3d at 775. There is no indication that it would. It is well established under 

Florida law that a judgment is “upon the merits” such that it carries preclusive 

effect when the judgment “amounts to a declaration of the law as to the respective 

rights and duties of the parties based upon the ultimate facts disclosed by the 

pleadings and evidence and upon which the right of recovery depends.” J. Schnarr 

& Co. v. Virginia-Carolina Chem. Corp., 159 So. 39, 42 (Fla. 1934); see also State 

St. Bank & Trust Co. v. Badra, 765 So. 2d 251, 254 (Fla. Dist. Ct. App. 2000) (“A 

judgment rendered on any grounds which do not involve the merits of the action 

may not be used as the basis for the operation of the doctrine of res judicata.”). In 

Badra, the court held that the trial court’s dismissal of a foreclosure action on the 

ground that the bank “fail[ed] to comply with certain conditions precedent” under 

Case: 16-11621 Date Filed: 12/21/2016 Page: 5 of 7 
6

the mortgage was not “an adjudication on the merits” because “[a]t no time did the 

court grant summary judgment on the basis that the mortgage was unenforceable.” 

Badra, 765 So. 2d at 254–55. Here, like Badra, the state court made no decision as 

to the enforceability of the mortgage. To the contrary, the court dismissed the 

suit—and refused to reach the merits—because the party seeking relief lacked 

standing. Cf. Vasquez, 692 F.3d at 1199 (holding that a Florida court’s dismissal 

for forum non conveniens “was not a judgment on the merits because it did not 

resolve the respective rights and duties of the parties.” (quotation omitted)).

Because a dismissal for lack of standing is not an adjudication on the merits, the 

state court’s dismissal of the foreclosure action against the Streichers does not have 

preclusive effect. 

The Streichers claim that Florida Rule of Civil Procedure 1.420(b) supports 

their argument that a dismissal for lack of standing is an adjudication on the merits. 

However, Rule 1.420(b) says that, although an involuntary dismissal generally

“operates as an adjudication on the merits,” a “dismissal for lack of jurisdiction”

does not. Fla. R. Civ. P. 1.420(b). Under Florida law, it is clear that a dismissal 

for lack of standing is a dismissal for lack of jurisdiction. See Rogers & Ford 

Const. Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla. 1993) (“The 

determination of standing to sue concerns a court’s exercise of jurisdiction to hear 

and decide the cause pled by a particular party.”); Ervin v. Taylor, 66 So. 2d 816, 

Case: 16-11621 Date Filed: 12/21/2016 Page: 6 of 7 
7

817 (Fla. 1953) (en banc) (holding that the court was without jurisdiction where 

there were no actual adversaries as to a present controversy). Because the state

court’s dismissal falls into the category of dismissals that the Florida Rules of Civil 

Procedure expressly designate as not being “on the merits,” the state court’s 

dismissal of the foreclosure action cannot have preclusive effect.

The district court was correct in its determination that the state court 

dismissal does not have res judicata effect under Florida law. 

AFFIRMED.

Case: 16-11621 Date Filed: 12/21/2016 Page: 7 of 7