PHH Mortg. Corp. v. Parish, Case No. 2D17–561
| Decision Date | 26 January 2018 |
| Docket Number | Case No. 2D17–561 |
| Citation | 244 So.3d 338 |
| Parties | PHH MORTGAGE CORPORATION, Appellant, v. Jessika D. PARISH; David M. Parish; any and all unknown parties claiming by, through, under, and against the Herein named Individual Defendant(s) who are not known to be Dead or Alive, whether said unknown Parties may Claim an Interest as Spouses Heirs, Devisees, Grantees, or other Claimants; Springleaf Home Equity, Inc. f/k/a American General Home Equity, Inc.; Tenant #1, Tenant #2, Tenant #3, and Tenant #4 the names being fictitious to account for parties in possession, Appellees. |
| Court | Florida District Court of Appeals |
Adam J. Knight and Jacqueline Simms–Petredis of Burr & Forman LLP, Tampa, for Appellant.
Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees Jessika D. Parish and David M. Parish.
No appearance for the remaining Appellees.
PHH Mortgage Corporation appeals the trial court's order granting the Parishes' motion for involuntary dismissal of PHH's foreclosure action. Because the trial court erred in concluding that Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), required dismissal of PHH's complaint even though PHH alleged a continuing state of default, we reverse.
In the June 2014 foreclosure complaint, PHH alleged that the Parishes defaulted by failing to make the August 1, 2009, payment "and all subsequent payments." Apparently, PHH had previously attempted to foreclose on the mortgage with a complaint that alleged the Parishes defaulted by failing to make the July 1, 2009, payment. The trial court dismissed that prior action without prejudice in 2013 because PHH "failed to establish that [the Parishes] [had] not paid the mortgage and therefore [PHH] [had] failed to prove a default." When ruling on the Parishes' motion for involuntary dismissal in this case, the trial court referenced Bartram and announced that it was granting the Parishes' motion because "a subsequent foreclosure action after one that's been voluntarily dismissed has to be based on a default that occurred subsequent to the date of dismissal, the prior foreclosure action, okay."
In Bartram, the supreme court explained that a "mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a ‘separate and distinct’ default" from the default that predicated the initial foreclosure action. 211 So.3d at 1019. And this court has explained that "alleging ‘a continuing state of default at the time of the filing of the complaint [is] sufficient to satisfy the ... statute of...
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Chapter 6-4 The Causes of Action and the Allegations
...Both Hicks and Collazo have been distinguished on the grounds that they contained unique facts.[130] See PHH Mortg. Corp. v. Parish, 244 So. 3d 338 (Fla. 2d DCA 2018); HSBC Bank USA, N.A. v. Sanchez, 245 So. 3d 784, 786 (Fla. 4th DCA 2018).[131] Locke v. State Farm Fire & Cas. Co., 509 So. ......
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Chapter 6-4 The Causes of Action and the Allegations
...Both Hicks and Collazo have been distinguished on the grounds that they contained unique facts.[130] See PHH Mortg. Corp. v. Parish, 244 So. 3d 338 (Fla. 2d DCA 2018); HSBC Bank USA, N.A. v. Sanchez, 245 So. 3d 784, 786 (Fla. 4th DCA 2018).[131] Locke v. State Farm Fire & Cas. Co., 509 So. ......