Opinion
No. 3D18-160
04-08-2020
HMC ASSETS LLC, Appellant, v. Minnie WILLIAMS, et al., Appellee.
Robertson, Anschutz & Schneid, P.L., and David Rosenberg and Jarrett Cooper (Boca Raton), for appellant. The Ticktin Law Group and Kendrick Almaguer (Deerfield Beach), for appellee.
Robertson, Anschutz & Schneid, P.L., and David Rosenberg and Jarrett Cooper (Boca Raton), for appellant.
The Ticktin Law Group and Kendrick Almaguer (Deerfield Beach), for appellee.
Before SCALES, LINDSEY and LOBREE, JJ.
PER CURIAM.
HMC Assets, LLC (the "mortgagee") appeals from the lower court's entry of involuntary dismissal in favor of Minnie Williams (the "borrower") in the foreclosure case against her below. For the reasons stated below, we reverse.
The mortgagee sued to foreclose alleging, in part, that "the payment due October 1, 2009 and all subsequent payments have not been made." At trial, the borrower relied on the fact that the previously dismissed, 2014 foreclosure action brought by the mortgagee's predecessor in interest had already alleged the borrower's default on October 1, 2009. The borrower successfully argued that "the fact that [the mortgagee] chose the exact same breach date in this case, which is already adjudicated by the prior action, means that they have failed to state a cause of action for foreclosure, and the proper remedy in this case ... is dismissal."
"Our standard of review of an order granting an involuntary dismissal is de novo, viewing all of the evidence ... in the light most favorable to the non-moving party." Deutsche Bank Nat'l Tr. Co. v. de Brito, 235 So. 3d 972, 974 (Fla. 3d DCA 2017).
The borrower concedes that our recent decision in U.S. Bank National Ass'n v. Amaya, 254 So. 3d 579 (Fla. 3d DCA 2018), militates against her defense on appeal. In Amaya, we reversed a similar involuntary dismissal, purportedly based on the defenses of res judicata and statute of limitations, since, while the prior foreclosure suit alleged default "on May 1, 2008," the subsequent suit alleged default "on May 1, 2008, and all subsequent payments." Id. at 580 (emphasis added). We held that the language "all subsequent payments" alleged subsequent, new causes of action. Id. at 583.
The borrower seeks to distinguish Amaya merely because the trial court here did not grant dismissal on the same affirmative defenses raised there, but on the mortgagee's failure to state—or make a prima facie case of—a foreclosure claim. The distinction is one without a difference. In HSBC Bank USA, National Ass'n v. Sanchez, 245 So. 3d 784, 785-86 (Fla. 4th DCA 2018), the Fourth District Court of Appeal also reversed an involuntary dismissal granted due to a purported failure to state a claim, where the mortgagee's subsequent suit alleged default on payments some of which chronologically overlapped with missed payments alleged in a previously dismissed suit. The Sanchez court held:
We find that the Bank here stated a cause of action for foreclosure by alleging a continuing series of missed payments (separate and distinct defaults) occurring both while the first cause of action was pending and continuing after the first cause of action was dismissed, and where the initial default alleged in the subsequent suit occurred after the default upon which the initial foreclosure action was based.
Id. at 786 (emphasis added). We agree with Sanchez and hold that our decision in Amaya compels the same result. Cf. Escorcia v. Fed. Nat'l Mortg. Ass'n, 260 So. 3d 551, 552 (Fla. 3d DCA 2018) (affirming per curiam on basis of both Sanchez and Amaya ). We reverse the order of dismissal and remand for entry of judgment in favor of the mortgagee and further proceedings consistent with this opinion.
Reversed with directions.