Wetherell, J.
Linda Coty Bullock (the borrower) appeals the final judgment of foreclosure entered in favor of Bayview Loan Servicing, LLC (the servicer). The borrower argues that res judicata barred this foreclosure action because the servicer had unsuccessfully prosecuted a prior foreclosure action against the borrower. We reject this argument and affirm the foreclosure judgment.
In 2003, the borrower obtained a $112,450 loan from Yale Mortgage Company. The loan was evidenced by a promissory note and secured by a mortgage on residential real property owned by the borrower. The servicer is the current owner and holder of the note and mortgage.
In 2010, the servicer filed a foreclosure action against the borrower based on the borrower's failure to make the loan payments due in February 2008 and thereafter. After a non-jury trial, the trial court entered final judgment in favor of the borrower. The final judgment stated in pertinent part: "On the evidence presented, the Court finds that [the servicer] has failed to prove that it has standing to enforce the note sued upon and has failed to prove by competent evidence the amount allegedly due on said note." The judgement ordered that the servicer "take nothing and that [the borrower] shall go hence without day." The servicer did not appeal the final judgment.
In 2015, the servicer filed another foreclosure action against the borrower based on the borrower's failure to make the loan payments due in July 2010 and thereafter. The borrower filed an answer raising affirmative defenses, including res judicata based on the final judgment in the prior foreclosure case. The trial court rejected the res judicata defense, and after a non-jury trial, the court entered a final judgment of foreclosure in favor of the servicer.
This appeal followed.
As she did below, the borrower argues on appeal that the current foreclosure action is barred by res judicata.
The servicer's position is amply supported by settled case law, including Bartram v. U.S. Bank National Association in which the Florida Supreme Court reaffirmed that "when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily barred by res judicata." 211 So.3d 1009, 1016 (Fla. 2016) (quoting Singleton v. Greymar Assoc., 882 So.2d 1004, 1006-07 (Fla. 2004)). The borrower acknowledges this holding, but argues that the "not necessarily barred" language used by the Court means that there are circumstances where subsequent foreclosure actions are barred by res judicata and that this case is one of those circumstances.
Specifically, the borrower argues the "take nothing" disposition of the prior foreclosure action equates to a determination that there was nothing due on the loan. This argument finds no support in the prior final judgment because the trial court did not affirmatively find that the borrower no longer owed anything on the loan; instead, the court simply found that the servicer failed to adequately prove the amount due based on the default alleged in that case.
On this record, it strains credibility to argue that the failure-of-proof finding in the prior foreclosure action equates to a finding that the borrower owes nothing on the loan. Indeed, the unrebutted evidence presented at the non-jury trial in this case established that the borrower has not made any payments on the loan for
For the foregoing reasons, we affirm the final judgment of foreclosure.
AFFIRMED.
Osterhaus and Winokur, JJ., concur.