Daily Development for Tuesday, March 15, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
MORTGAGES; FORECLOSURE; PROCEDURE: Dismissal with prejudice of mortgage foreclosure action is not a res judicata bar to the bringing of a new foreclosure action for a separate and unrelated default.
Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004)
This case resolves a split that had developed in the lower appeals courts in Florida - one leg of which would have caused considerable difficulty for the mortgage industry.
The basic question is whether the dismissal with prejudice of a mortgage foreclosure, occurring as a sanction for failing to appear at a hearing or performing some other task in the litigation, can result in a permanent bar to any foreclosure right, for any present or future default, as a matter of res judicata.
Amazingly, to the editor, one Florida court had so held. Another appeals court in another Florida appeals circuit had held that a subsequent foreclosure can be held for a different default. This case adopts the second rule, and permits a second foreclosure.
The problematic case, which was not the decision from which the current appeal was taken, was Stadler v. Cherry Hill Developers, Inc., 150 So. 2d 468 (Fla. 2d DCA 1963). It is amazing that it has resided unchallenged in the Florida authority for four decades. In Stadler, the trial court dismissed a foreclosure complaint with prejudice because plaintiffs did not take testimony with the timer period provided by the Rules of Civil Procedure. Later, when the mortgagee sought a second foreclosure based upon a different and subsequent default, the court refused to permit the suit, reasoning that both cases involved an attempt to collect an accelerated amount - basically the same debt.
“The essential question is whether the election to accelerate put the entire balance, including future installments at issue. If it was at issue then the second action seeks the same relief under the same contract and is predicated on a failure to comply with the same requirement. There can be no the accelerated balance was at issue and that the prayer of the complaint sought, not one interest installment, but the entire amount due. Accordingly, it seems clear that the actions are identical. . . .”
As indicated, the instant decision disapproves the above reasoning. It notes that decisions in other Florida appeals circuits already have done so, taking the view that the first decision, in which dismissal had been entered, was not a decision based upon the same facts nor seeking the same relief as in the second decision.
The court notes, of course, that it is possible that a res judicata bar might arise if there were an earlier decision on the merits passing on facts that necessarily are at issue in a second foreclosure litigation. For instance, if the first action challenged the very existence of the debt, or the validity of the mortgage itself, and the court had entered a judgment finding adverse to the purported mortgagee, then clearly that mortgagee could not reinstitute its claim based upon a second default on the same discredited mortgage claim.
Comment 1: Some studying the case may come across the somewhat remarkable description of an earlier Florida case, Greene v. Boyette, 567 So. 2d 629 (Fla. App. 1991) which the court described here as “holding that a mortgagee can successfully recover twice on one mortgage for multiple periods of default because the payments were different “installments.”) Before readers get too confused puzzling over how there can be two foreclosures on the same property, the editor reports that the case in fact involved a mortgagor who defaulted on a debt, and, when the mortgagee obtained a judgment for the unpaid monies, paid that judgment prior to any foreclosure being carried out (assuming that one was sought). Later, the mortgagor defaulted again and the mortgagee obtained a judgment for the second defaulted amount. There is no indication that the mortgage had an acceleration clause or, if it did, whether the mortgagee had invoked acceleration.
Comment 2: On the res judicata point, the court acknowledges that its holding is a “seeming variance from the traditional law of res judicata, and rests upon the unique nature of the mortgage obligation. It notes also that, since foreclosure is an equitable remedy, it is not unusual or surprising that “there may be some tension” between the adjudication of the equities in an individual case and the more rigid legal doctrine of res judicata.
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