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Date: 07-18-2022
Case Style:
PHH MORTGAGE CORPORATION vs ERIC V. SCHREIBER A/K/A ERIC SCHREIBER AND KATHY SCHREIBER
Case Number: 5D21-1377
Judge:
PER CURIAM
Kerry I. Evander
John M. Harris
Court:
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
On Appeal From The Circuit Court for Citrus County
Carol A. Falvey
Judge
Plaintiff's Attorney:
Michael Smith, of Burr & Forman LLP
Defendant's Attorney:
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Description:
Daytona Beach, Florida - Real Estate lawyer represented Appellees/Cross-Appellants with a second foreclosure action.
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).
3
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.
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: