       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

         BRANDON DEPICCIOTTO and DAWN DEPICCIOTTO,
                         Appellants,

                                     v.

NATIONSTAR MORTGAGE LLC, CITY OF PALM BEACH and ANY AND
  ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER AND
   AGAINST THE ABOVE-NAMED DEFENDANT(S) WHO ARE NOT
   KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN
PARTIES MAY CLAIM AN INTEREST AS SPOUSE, HEIRS, DEVISEES,
             GRANTEES, OR OTHER CLAIMANTS,
                        Appellees.

                              No. 4D16-3254

                            [ August 16, 2017 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Peter D. Blanc, Judge; L.T. Case No. 2014 CA002544
XXXXMB.

   James A. Bonfiglio, Boynton Beach, for appellants.

   Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of
Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West
Palm Beach, for Appellee Nationstar Mortgage, LLC.

CYNAMON, ABBY, Associate Judge.

    Appellants Brandon and Dawn DePicciotto appeal from a final
judgment of foreclosure entered in favor of Nationstar Mortgage, LLC
(“Nationstar”) in this third foreclosure action. Appellants raise two issues
on appeal. First, appellants assert that the trial court erred in entering
final judgment in favor of Nationstar as the statute of limitations had
expired five years after the February 1, 2009 alleged default date, therefore
making Nationstar’s March 3, 2014 foreclosure filing untimely. Second,
appellants assert that the trial court erred in entering final judgment in
favor of Nationstar because the involuntary dismissal with prejudice of the
first foreclosure action filed by Aurora in January 2009 acted as an
adjudication on the merits. Appellants assert that the doctrines of res
judicata and collateral estoppel prevent Nationstar from filing this suit and
relitigating any issues. We affirm the trial court on both issues.

    First, 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. See Bartram
v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009, 1021 (Fla. 2016) (“Once there
were future defaults, however, the Bank had the right to file a subsequent
foreclosure action—and to seek acceleration of all sums due under the
note—so long as the foreclosure action was based on a subsequent default,
and the statute of limitations had not run on that particular default.”);
Kebreau v. Bayview Loan Servicing, LLC, 4D16-2010, 2017 WL 2983999
(Fla. 4th DCA July 12, 2017) (holding that “the complaint was not barred
by the statute of limitations where it alleged continuing defaults”);
Klebanoff v. Bank of New York Mellon, 5D16-1637, 2017 WL 2818078, at
*3 (Fla. 5th DCA June 30, 2017) (“Because the Bank alleged and proved
that the subject mortgage was in a continuous state of default, which
included defaults within the five-year statute of limitations, its action was
not barred, even if the initial default was alleged to have occurred more
than five years prior to the filing of the complaint.”); Desylvester v. Bank
of New York Mellon, No. 2D15-5053, 2017 WL 2562370, at *3 (Fla. 2d DCA
June 14, 2017) (concluding that “the allegations of the complaint in the
underlying action that the borrowers were in a continuing state of default
at the time of the filing of the complaint was sufficient to satisfy the five-
year statute of limitations”); Bollettieri Resort Villas Condo. Ass’n, Inc. v.
Bank of N.Y. Mellon, 198 So. 3d 1140, 1142 (Fla. 2d DCA 2016) (complaint
alleging a continuing state of default “was sufficient to establish that
foreclosure could be based on any of the missed payments since the initial
breach”), rev. granted, No. SC16-1680 (Fla. Nov. 2, 2016).

    We distinguish cases where the plaintiff in a foreclosure action relied
upon a specific default date that was beyond the statute of limitations
period. See Collazo v. HSBC Bank USA, N.A., 213 So. 3d 1012, 1013 (Fla.
3d DCA 2016) (reversing foreclosure judgment where plaintiff “asserted the
same payment default date and basis for acceleration in both the 2008
and 2014 complaints, a date over five years preceding the commencement
of the 2014 case in the circuit court”); Hicks v. Wells Fargo Bank, N.A., 178
So. 3d 957, 959 (Fla. 5th DCA 2015) (where trial counsel for the parties
stipulated to a default date that was outside of the five-year statute of
limitations period, the trial court erred in failing to dismiss the complaint).

   Second, we find no merit to appellants’ contention that res judicata and
collateral estoppel prevented litigation and adjudication of the issues in
this iteration of the case by Nationstar. Neither res judicata nor collateral
estoppel is applicable in this case because Nationstar’s 2014 action was

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predicated upon “subsequent and different defaults,” which presented a
“separate and distinct issue.” See Singleton v. Greymar Associates, 882
So. 2d 1004, 1007–08 (Fla. 2004) (concluding that “the doctrine of res
judicata does not necessarily bar successive foreclosure suits,” and
explaining that while “a foreclosure action and an acceleration of the
balance due based upon the same default may bar a subsequent action on
that default, an acceleration and foreclosure predicated upon subsequent
and different defaults present a separate and distinct issue”); Aronowitz v.
Home Diagnostics, Inc., 174 So. 3d 1062, 1066 (Fla. 4th DCA 2015)
(citation omitted) (for collateral estoppel to apply, the specific issue must
have been “actually litigated and decided in the former suit”).

   For the foregoing reasons, we affirm the final judgment.

   Affirmed.

DAMOORGIAN and KUNTZ, JJ., and, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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