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In Sekula II (or Sekula Two), the District Judge was confronted with a defense of res judicata in a case filed against a mortgage servicer and the carrier which provided a policy which the servicer allegedly force-placed on the plaintiffs: Sekula v. Residential Credit Solutions, Inc., No. 6:15-cv-2014-Orl-31KRS, 2016 WL 4272203 (M.D. Fla. August 15, 2016). This case and an earlier ruling in the same case were described in a post published here on Tuesday, August 23, 2016.
The Sekula Two defendants argued that the claims alleged against them should have been raised in a previous foreclosure lawsuit in Florida State Court. To be exact, the defendants contended that the claims at bar -- breach of contract and breach of the covenant of good faith and fair dealing alleged against the mortgage servicer, and tortious interference alleged against both the mortgage servicer and against the insurance company which provided the force-placed policy -- "should have been raised as compulsory counterclaims in the foreclosure suit." Sekula v. Residential Credit Solutions, Inc., No. 6:15-cv-2014-Orl-31KRS, 2016 WL 4272203, at *2 (M.D. Fla. August 15, 2016).
The defendants seemingly overlooked the Florida law of res judicata when they raised their affirmative defense in a Federal Court sitting in Florida. "[U]nder Florida law, res judicata is an affirmative defense, which cannot be raised in a motion to dismiss unless the allegations of a prior pleading in the case demonstrate its existence." Sekula v. Residential Credit Solutions, Inc., No. 6:15-cv-2014-Orl-31KRS, 2016 WL 4272203, at *2 (M.D. Fla. August 15, 2016) (emphasis added). The pleadings in the case did not demonstrate its existence and the parties did not stipulate otherwise. "Accordingly, the issue of res judicata must be pleaded and proven as an affirmative defense." Sekula v. Residential Credit Solutions, Inc., No. 6:15-cv-2014-Orl-31KRS, 2016 WL 4272203, at *2 (M.D. Fla. August 15, 2016). The motion to dismiss was denied to the extent that it was based on a claim of res judicata.
The Court went on to grant the defendants' motions to dismiss in part and deny the motions to dismiss in part including as to the asserted ground of res judicata. The tortious interference claim was dismissed against both defendants, without prejudice, while the claim for bad faith against the servicer was again upheld -- as it was when the Court ruled on the defendants' first motion to dismiss.
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