         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-3130
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LINDA COTY BULLOCK,

    Appellant,

    v.

BAYVIEW LOAN SERVICING, LLC,

    Appellee.
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On appeal from the Circuit Court for Bay County.
Keith Brace, Judge.

                          June 28, 2019


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.

                              Facts

     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.

                             Analysis

     As she did below, the borrower argues on appeal that the
current foreclosure action is barred by res judicata. 1 The servicer
responds that res judicata does not apply here because the current
foreclosure action was based on a different period of default than




    1  We reject the servicer’s argument that this issue was not
properly preserved for review. The issue was pled as an
affirmative defense, framed in the pre-trial stipulation, and raised
in a motion in limine that was denied by trial court. The fact that
the borrower did not also raise the issue in its closing argument
does not, under the circumstances, amount to a waiver or
abandonment of the issue.


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the prior action. Based on our de novo review, 2 we agree with the
servicer.

     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 more than a decade. Accordingly, even if the borrower’s
interpretation of the prior final judgment was correct, it would be
inequitable to apply the doctrine of res judicata to bar the
foreclosure action in this case. See Bartram, 211 So. 3d at 1017
(“Clearly, justice would not be served if the mortgagee was barred
from challenging the subsequent default payment solely because
he failed to prove the earlier alleged default.”) (quoting Singleton,

    2  See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1259 (Fla.
2006) (“[W]hether the application of res judicata was proper is a
question of law. We therefore apply a de novo standard of review.”)
(internal citation omitted).
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882 So.2d at 1007-08); Provident Funding Assoc., L.P. v. MDTR,
257 So. 3d 1114, 1117 (Fla. 2d DCA 2018) (“[C]ourts may decline
to apply the doctrine [of res judicata] in limited circumstances
when it would ‘defeat the ends of justice.’”) (quoting State v.
McBride, 848 So. 2d 287, 291 (Fla. 2003)).

                          Conclusion

     For the foregoing reasons, we affirm the final judgment of
foreclosure.

    AFFIRMED.

OSTERHAUS and WINOKUR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Jeffrey P. Whitton, Panama City, for Appellant.

Alexis Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert,
Fort Lauderdale, for Appellee.




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