Res judicata would not apply here because subsequent and different defaults are separate causes of action. See Depicciotto v. Nationstar Mortg. LLC, 225 So.3d 390, 392 (Fla. 4th DCA 2017). Collateral estoppel is the correct principle to apply.
Thus, having limited its recovery only to those defaults occurring within five years of the second lawsuit, BNY's action was not barred by the statute of limitations. See § 95.11(2)(c), Fla. Stat. (2015) ; § 95.031, Fla. Stat. (2015) ; Depicciotto v. Nationstar Mortg. LLC , 225 So.3d 390, 391 (Fla. 4th DCA 2017) ("Nationstar's 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 this suit."); Desylvester v. Bank of N.Y. Mellon , 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) (holding the same); Evergrene Partners, Inc. v. Citibank, N.A ., 143 So.3d 954, 956 (Fla. 4th DCA 2014) (holding the same). Desai also suggests that the court's involuntary dismissal of BNY's initial foreclosure action with prejudice precluded the trial court from awarding any amounts that were in default while the initial foreclosure action was pending.
Id. at 445 n. 4.We recently reached similar results in Depicciotto v. Nationstar Mortgage LLC , 225 So.3d 390, 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").