DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE, for the 

Registered Holders of Nomura Home Equity Home Loan, Inc., AssetBacked Certificates, Series 2007-2,

Appellant,

v.

THE ESTATE OF CHLOE ANN PETERCEN a/k/a CHLOE ANN 

PETERSEN, DECEASED, and MORTGAGE ELECTRONIC 

REGISTRATION SYSTEMS, INC., as Nominee for Master Financial, Inc.,

Appellees.

No. 4D16-3283

[September 27, 2017]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Paul B. Kanarek, Judge; L.T. Case No. 31-2015-CA0716.

Michael D. Starks of Greenberg Traurig, P.A., Orlando, and Patrick G. 

Broderick of Greenberg Traurig, P.A., West Palm Beach, for appellant.

No appearance for appellees.

CONNER, J.

Appellant (“the Bank”) appeals the trial court’s order dismissing its 

foreclosure suit and the order denying its motion for rehearing. The Bank 

argues that the trial court erred in dismissing the case based on unpled 

and unproven defenses of res judicata and statute of limitations. Although 

we agree with most of the Bank’s arguments on appeal, we need not 

address them in detail. Based on Bartram v. U.S. Bank National 

Association, 211 So. 3d 1009 (Fla. 2016), clarifying the effect of prior 

dismissals on subsequent foreclosure proceedings, it is clear the trial court 

erred.

Background

On September 5, 2015, the Bank filed the foreclosure action below

against the defendants, which included the unknown heirs of the 
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homeowner’s estate. The complaint alleged a default under the note and 

mortgage “as of November 1, 2009, and all subsequent payments.”

Thereafter, an attorney ad litem was appointed to represent the unknown 

heirs and the estate. The attorney ad litem filed an answer and report on 

behalf of the defendants, raising the statute of limitations as an affirmative 

defense. Specifically, the affirmative defense stated that the action was 

filed over five years after the date of default and that the action was

therefore time-barred. Additionally, the affirmative defense stated that an 

earlier foreclosure case brought by the Bank in 2011 had been dismissed 

without prejudice in May 2013. 

Subsequently, the Bank moved to amend the complaint to add a party 

defendant, attaching a proposed amended complaint. The trial court 

granted the motion, ordered that the amended complaint was deemed 

filed, and gave the defendants ten days to respond to the amended 

complaint. No response to the amended complaint was ever filed by any 

of the defendants, nor was anything further filed with the court on their 

behalf. The matter proceeded to a bench trial with no appearance for the 

defendants. 

At the beginning of the trial, the Bank’s counsel advised the trial court 

that the answer brief filed by the attorney ad litem alleged a statute of 

limitations issue, and that there was a statute of limitations issue in the

case. He explained that the default occurred in 2009, and that a prior 

foreclosure action had been filed in 2011 but was dismissed without 

prejudice in 2013. He further explained that this second suit, alleging the 

same original default date, was filed in 2015, almost 6 years after that 

original default date. The Bank’s counsel argued, before presenting any 

evidence, that the appropriate remedy would be to recalculate the amounts 

of principal and the amount of fees at the five-year cut-off to bring the 

dates within the statute of limitations. The trial court noted that it needed 

more time to review the case law on this issue, but that it would listen to 

the Bank’s evidence that day. As such, the Bank proceeded to present its 

evidence and reargued its earlier position about the statute of limitations. 

A recess was taken, after which the Bank’s counsel presented the trial 

court with the recalculated figures bringing the amount due within the 

five-year limit from the commencement of the suit. The trial court asked 

counsel to send it a judgment stating that there was a prior foreclosure 

which was dismissed and showing that the recalculated judgment amount 

was based on the case law argued by counsel. However, the trial court 

also noted that it would still be reviewing the case law before entering its 

judgment. 

Three days later, the trial court issued an order of dismissal, stating 
3

that the Bank had previously filed a foreclosure suit involving the same 

property and mortgage, alleging a default as of November 1, 2009 and all 

subsequent payments. It noted that the first case was dismissed on May 

3, 2013 and that: 

The dismissal of [the first case] which alleges a default on 

November 1, 2009, bars a subsequent suit on the same cause 

of action. Olympia Mortgage Corp. v. Pugh, 774 So. 2d 863 (Fla. 

4th DCA 2000); Singleton v. Greymar Associates, 882 So. 2d 

1004 (Fla. 2004); U.S. Bank National Association v. Bartram, 

140 So. 3d 1007 (Fla. 5th DCA 2014).

Therefore, the trial court dismissed the instant case, finding that the Bank 

could not bring a second action alleging a default on the same date. 

The Bank then filed a motion for rehearing, arguing that nobody had 

appeared on behalf of the defendants at trial, and that there was therefore 

no evidence presented to support the statute of limitations defense which 

they had the burden to prove. The Bank additionally argued that the first 

action was dismissed without prejudice and that a subsequent action on 

that same date would not be precluded on res judicata grounds, which had 

not even been properly raised as a defense, nor was it barred by the statute 

of limitations because the entire debt did not become due upon default of 

payment, but upon the filing of the first action in August 2011, which was 

less than five years before this second suit was filed. Alternatively, the 

Bank asserted that at least the suit would not have been barred as to the 

amounts due within the five-year limit, where it had alleged a default of 

not only one date, but of “all subsequent payments.” The trial court denied 

the Bank’s motion for rehearing. The Bank gave notice of appeal.

Analysis

We apply a de novo standard of review to issues of the application of 

res judicata and the statute of limitations. Aronowitz v. Home Diagnostics, 

Inc., 174 So. 3d 1062, 1065 (Fla. 4th DCA 2015); Philip Morris USA, Inc. v. 

Barbanell, 100 So. 3d 152, 157 (Fla. 4th DCA 2012).

The trial court was of the opinion that a subsequent foreclosure 

proceeding is barred when it alleges the same beginning default date 

alleged in a prior foreclosure proceeding that was dismissed. As quoted 

above from the trial court order, the trial court relied on and cited the Fifth 

District’s opinion in Bartram. Bartram dealt with the statute of limitations 

defense.
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As clarified by our supreme court in Bartram, issued a few months after 

the trial court’s dismissal of the instant case, the trial court erred. The 

Bank’s counsel alerted the trial court that the supreme court’s review of 

the Fifth District’s opinion in Bartram was pending at the time of trial, but 

as discussed in the order of dismissal, proceeded to urge the trial court to 

adopt the position of the Third District in its initial opinion in Collazo v. 

HSBC Bank, USA, N.A., 41 Fla. L. Weekly D933 (Fla. 3d DCA Apr. 13, 

2016), opinion withdrawn and superseded on reh’g, 213 So. 3d 1012 (Fla. 

3d DCA 2016), allowing a subsequent foreclosure where the complaint 

used the same beginning default date in a prior proceeding, but limiting 

the amount of the judgment to sums overdue within five years of the date 

the subsequent suit was filed. The trial court did not find the Collazo

opinion to be persuasive authority, because it was not final and conflicted 

with existing case law in this District. Instead, as discussed above, the 

trial court dismissed the case. We note that subsequent to the trial in this 

case, the Third District withdrew its initial opinion in Collazo and issued 

an opinion on rehearing, reversing its initial opinion and determining 

dismissal of the action was appropriate because a single date of default 

was alleged in the subsequently filed complaint. Collazo, 213 So. 3d at 

1013.

In Bartram, our supreme court clarified a few points of law regarding 

the effect of prior dismissals of foreclosure proceedings with regards to res 

judicata and the statute of limitations defense. The crux of the analysis 

concerning both defenses revolved around the equities of foreclosure and 

the recognition that each default in monthly payments creates a 

continuing cause of action. Bartram, 211 So. 3d at 1017. (“Our 

recognition in Singleton that each new default presented a separate cause 

of action was based upon the acknowledgement that because foreclosure 

is an equitable remedy, ‘[t]he ends of justice require that the doctrine of 

res judicata not be applied so strictly so as to prevent mortgagees from 

being able to challenge multiple defaults on a mortgage.’” (alteration in 

original)) (quoting Singleton v. Greymar Assoc., 882 So. 2d 1004, 1018 (Fla. 

2004)). The supreme court’s analysis was also premised on the standard 

language in residential mortgages granting reinstatement of the mortgage 

after default, and its agreement with the position of the Real Property Law 

Section of the Florida Bar that “[t]he lender’s right to accelerate is subject 

to the borrower’s continuing right to cure.” Id. at 1020-21. The supreme 

court concluded that “the dismissal of the foreclosure action [has] the 

effect of revoking the acceleration.” Id. at 1021.

Even more pertinent to this case, the supreme court said:
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Therefore, with each subsequent default, the statute of 

limitations runs from the date of each new default providing 

the mortgagee the right, but not the obligation, to accelerate 

all sums then due under the note and mortgage.

Consistent with the reasoning of Singleton, the statute of 

limitations on the balance under the note and mortgage would 

not continue to run after an involuntary dismissal, and thus the 

mortgagee would not be barred by the statute of limitations 

from filing a successive foreclosure action premised on a 

“separate and distinct” default. Rather, after the dismissal, the 

parties are simply placed back in the same contractual 

relationship as before, where the residential mortgage 

remained an installment loan, and the acceleration of the 

residential mortgage declared in the unsuccessful foreclosure 

action is revoked.

Id. at 1019 (emphases added). Additionally, after noting that “a dismissal 

without prejudice would allow a mortgagee to bring another foreclosure 

action premised on the same default as long as the action was brought 

within five years of the default per section 95.11(2)(c)[, Fla. Stat.],” the court 

went on to say, “[w]hether the dismissal of the initial foreclosure action by 

the court was with or without prejudice may be relevant to the mortgagee’s 

ability to collect on past defaults,” alluding to a res judicata defense. Id.

at 1020 (emphases added).

After Bartram, two of our sister courts have addressed res judicata and 

statute of limitations issues with fact patterns similar to the instant case.

In Deslyvester v. Bank of New York Mellon, 219 So. 3d 1016 (Fla. 2d 

DCA 2017), the bank filed a foreclosure action in 2012, alleging “the 

borrowers had defaulted on their regular monthly payment due on October 

1, 2008, ‘and all subsequent payments.’” Id. at 1018. That action was 

dismissed for reasons not disclosed in the record. Id. Then in December 

2014, the bank filed a second foreclosure action, again alleging the failure 

to make the payment due on October 1, 2008, “and all subsequent 

payments.” Id. Quoting the language of Bartram that “with each 

subsequent default, the statute of limitations runs from the date of each 

new default,” the Second District affirmed the trial court order denying the 

affirmative defense of statute of limitations, concluding “the allegations of 

the complaint in the underlying action that the borrowers were in a 

continuing state of default at the time of the filing of the complaint was 

sufficient to satisfy the five-year statute of limitations.” Id. at 1019-20 

(citations omitted). We note it is unclear from the discussion of the facts 
6

in Deslyvester that the trial court entered a judgment only for defaults in 

monthly payments within five years before the date the last suit was filed, 

but we assume that is the case.

In Forero v. Green Tree Servicing, LLC, -- So. 3d --, 2017 WL 2989493 

(Fla. 1st DCA July 14, 2017), the mortgage holder filed a foreclosure action 

in February 2010, alleging a “failure to pay on ‘December 1, 2008 and all 

subsequent payments.’” Id. at *1. The first suit was voluntarily dismissed 

in December 2011. Id. A second suit was filed in February 2013, alleging 

the same default language in the first complaint. Id. The second suit was 

voluntarily dismissed in April 2013. Id. A third suit was filed in April 

2014, again alleging the same default language in the first complaint. Id. 

Citing Bartram, the First District affirmed the trial court’s denial of the res 

judicata defense, reasoning that the defense did not apply “because the 

open-ended series of defaults included different missed payments at issue 

in each suit.” Id. at *3. Likewise, relying on Bartram, the First District 

affirmed the denial of the statute of limitations defense, concluding “each 

missed payment constituted a new default.” Id. at *4. We note that in a 

footnote, the First District acknowledged that it did not address “[t]he effect 

of the passage of time, if any, upon the amount recoverable via foreclosure 

judgment when the initial default in a continuous series of defaults 

occurred more than five years before the filing of the complaint,” because 

the issue was not addressed in the trial court or on appeal. Id. at *4 n4.

We recently reached similar results in Depicciotto v. Nationstar Mortgage

LLC, –– So. 3d –– 2017 WL 3500337 (Fla. 4th DCA Aug. 16, 2017). (holding

a foreclosure action was not barred by the statute of limitations where it 

alleged and proved separate and continuing defaults that fell within the 

five years preceding the filing of the subsequent suit, and res judicata is 

not applicable because the subsequent action was predicated upon 

“subsequent and different defaults,” which presented a “separate and 

distinct issue”).

Conclusion

Because the trial court dismissed the proceeding below on the grounds 

of res judicata and the statute of limitations after a prior proceeding was 

dismissed without prejudice, we hold the trial court erred where the 

subsequent complaint alleged a continuing default in monthly payments.

The record indicates that the Bank presented a calculation of the 

amount due under the note and mortgage which did not include defaulted 

payments and charges which accrued more than five years before the last 

suit was filed. We remand the case for the trial court to vacate the order 
7

of dismissal and to enter a judgment of foreclosure consistent with this 

opinion. If necessary, the trial court may take further evidence on the 

appropriate amount of the judgment.

Reversed and Remanded

TAYLOR and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.