The doctrine of res judicata precludes consideration not only of issues
that were raised and decided in a proceeding but also of issues that
could have been raised and decided. Angela Virgo appeals a motion to
vacate a final judgment of foreclosure that sought vacatur on grounds
that her participation in a federal modification program rendered the
foreclosure inequitable. Because Virgo failed to raise this claim in a prior
motion to vacate, we affirm.
Virgo executed and delivered a mortgage and note to National City
Mortgage. Virgo defaulted o n th e mortgage, so in January 2009,
National City filed a two-count complaint to foreclose on the note and
mortgage.
A month later, National City sent Virgo a letter notifying her that she
could b e eligible to participate in the federal Home Affordable
Modification Program (HAMP), which would allow her to obtain a
modification of the terms of her loan and avoid foreclosure. The terms of
the HAMP program would require Virgo to fill out paperwork to see if she
qualified for a modification and to make timely trial period payments if
qualified. Virgo applied for the HAMP program. While her application
was pending, National City moved for summary judgment and obtained a
final judgment of foreclosure in April 2009. A sale was originally
scheduled for July 2009.
– 2 –
Apparently, a sale was not held as Virgo was offered a trial plan under
HAMP in October 2009. The trial plan required Virgo to make three
monthly payments to receive a permanent modification. Virgo was then
offered a second trial plan in March 2010. Virgo attested to making all
three payments under the second plan, and even making a fourth and
fifth payment under that plan. However, National City rejected the fifth
payment and proceeded with scheduling a foreclosure sale.
In February 2011, Virgo obtained counsel and filed her first motion to
vacate the sale date, vacate the final judgment, and dismiss the case for
fraud. (“First Motion to Vacate”). The First Motion to Vacate requested
relief on grounds National City lacked standing to foreclose on Virgo’s
home (because the mortgage lists the lender as National City Mortgage,
but the plaintiff was National City Mortgage Co.) and on grounds the
affidavit of indebtedness was fraudulent. The trial court denied Virgo’s
First Motion to Vacate, and Virgo appealed.
While the first appeal was pending, a foreclosure sale was scheduled
and held in June 2011. Virgo filed an amended objection to the sale,
motion to vacate sale and final judgment, and motion to dismiss the case
in September 2011. (“Second Motion to Vacate”). The Second Motion to
Vacate specifically sought relief pursuant to rule 1.540(b)(4) and (5) on
the following grounds: (1) National City lacked standing to foreclose
because National City failed to allow Virgo to complete the HAMP
program, which was a “condition precedent” to National City seeking
foreclosure; and (2) National City’s action in offering Virgo a trial period
but then denying her a permanent modification despite her compliance
with the program rendered the final judgment no longer equitable. The
trial court denied Virgo’s Second Motion to Vacate in December 2011
over Virgo’s objection that the trial court lacked jurisdiction to rule on
the motion while an appeal was pending on the First Motion to Vacate.
Virgo argues the trial court erred in denying her Second Motion to
Vacate on the merits without holding an evidentiary hearing.1 National
City asserts that Virgo’s claims in her Second Motion to Vacate are
barred by either res judicata or collateral estoppel because they could
have been raised in the First Motion to Vacate. The standard of review of
a trial court’s ruling on a motion to vacate is abuse of discretion. Phadael
v. Deutsche Bank Trust Co. Ams., 83 So. 3d 893, 894 (Fla. 4th DCA
2012).
1 Virgo also argues the trial court lacked jurisdiction to consider the Second
Motion. We affirm on this issue without discussion.
– 3 –
This court previously considered the application of the res judicata
doctrine to subsequent motions to vacate in Purcell v. Deli Man, Inc., 411
So. 2d 378 (Fla. 4th DCA 1982). In Purcell, the plaintiff received a final
money judgment after a default was entered against the defendant. The
defendant timely moved to vacate, asserting mistake and excusable
neglect. Th e trial court denied th e motion. Two years later, the
defendant filed a second motion to vacate, arguing the final judgment
was void because the complaint failed to allege sufficient facts to
establish personal jurisdiction. Th e trial court granted the second
motion. We reversed, holding it was fundamental error for the trial court
to entertain a second motion to vacate when the grounds raised could
have been raised in the first motion to vacate. Id. at 379. Purcell relied
upon Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971), which
explained that any issues raised or, through due diligence, could have
been raised in a first motion to vacate are barred by res judicata from
being raised in a second or subsequent motion to vacate. Id. at 467.
Here, Virgo does not argue that the issues raised in the Second
Motion could not have been raised in the First Motion; instead, Virgo
argues res judicata should not be applied because its application would
work an injustice, citing Paul v. Wells Fargo Bank, N.A., 68 So. 3d 979
(Fla. 2d DCA 2011). In Paul, the elderly homeowner failed to answer a
foreclosure complaint. A default final judgment was entered, and the
home sold. Id. at 980. The homeowner moved to set aside the final
judgment on grounds of excusable neglect, which the trial court denied
on grounds the home already had been sold. Id. at 981. However, the
trial court suggested it would reconsider if the homeowner provided case
law showing the trial court had jurisdiction to intervene. The homeowner
filed a motion to vacate the order denying the motion to vacate with
additional caselaw, which the trial court denied. Id. at 983. On appeal,
the bank defended in part on grounds the second motion was an
improper attempt to relitigate issues raised in the first motion. Id. at
985. The Second District held res judicata was not a bar when the
issues were not settled at the first hearing, the trial court invited the
homeowner to present additional case law, and the bank did not object to
the second motion on grounds it was successive. Id. at 986.
None of the factors present in Paul exist in this case. National City
opposed Virgo’s Second Motion before the trial court on the ground it
was successive. There is no indication in the record that the trial court
invited Virgo to file a second motion. Rather than raising issues
unresolved from the First Motion, the Second Motion raises new issues
regarding National City’s violation of HAMP and a purported settlement
agreement that occurred in 2010. However, the facts supporting the
– 4 –
Second Motion occurred before the First Motion to Vacate was filed so
the basis alleged in the Second Motion could have been raised in the
First Motion to Vacate. Therefore, we find res judicata bars Virgo’s
Second Motion to Vacate in this case.