DIAZ | ANSELMO CELEBRATES ANOTHER APPELLATE VICTORY IN FLORIDA

The Sixth DCA recently affirmed i Bank of America’s (“BOA”) foreclosure judgment entered in March 2024 against Nancy Buckingham (“Buckingham”) after two prior failed attempts to foreclose the mortgage on Buckingham’s real property. Buckingham v. Bank of Am., N.A., 2025 Fla. App. LEXIS 9751 (Fla. 6th DCA December 30, 2025). Buckingham took out a mortgage in 2006 and stopped making payments in 2014. BOA filed a lawsuit and obtained a foreclosure judgment against Buckingham, but it was reversed on appeal in 2017 based on inadequate evidence of standing. ii

Thereafter, the loan remained in default, so BOA initiated proceedings against Buckingham again in 2022 seeking both to foreclose its lien and reestablish the lost note under §§ 673.3091 and 673.3011. Buckingham answered the complaint and alleged lack of standing and res judicata as affirmative defenses.

Both below and on appeal Buckingham argued BOA lacked standing because the endorsements on the note did not establish BOA was entitled to enforce the note. In response, BOA proffered evidence of mergers and assignments which demonstrated an unbroken chain of ownership from the loan originator to BOA. Additionally, BOA demonstrated it maintained physical possession of the original note and was entitled to enforce it at all material times.

In support of her res judicata defense Buckingham reasoned that BOA was barred from trying to foreclose its lien for the third time after two prior unsuccessful attempts. BOA rebutted that the prior foreclosure lawsuits were not based on the same cause of action because each new monthly payment default resulted in a new cause of action. For this reason, BOA argued that Buckingham could not prove a required element of res judicata. Additionally, BOA argued that Buckingham failed to introduce any competent evidence to prove any of the four required elements of the defense.

The trial court agreed with BOA and entered the foreclosure judgment reestablishing the lost note and foreclosing BOA’s lien. Due to the fact the order affirming the judgment did not include any findings, we can only speculate that the DCA also concluded BOA was entitled to judgment or that Buckingham failed to demonstrate a basis for reversal.

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1. The Sixth DCA recently affirmed Bank of America’s (“BOA”) foreclosure judgment entered in 2024 against Nancy Buckingham (“Buckingham”) after two prior failed attempts to foreclose the mortgage on Buckingham’s real property. Buckingham v. Bank of Am., N.A., 2025 Fla. App. LEXIS 9751 (Fla. 6th DCA December 30, 2025).

   
   

2. BOA filed its third foreclosure action against Buckingham in 2022 and she opposed the foreclosure based on lack of standing and res judicata. BOA asserted that due to Buckingham’s monthly payment default, she could not prove the prior foreclosure actions were based on the same cause of action, a required element of res judicata. Further, Buckingham failed to overcome BOA’s evidence of standing based on BOA’s unbroken chain of ownership.

   
   

3. The trial court agreed with BOA and entered judgment reestablishing the lost note and foreclosing BOA’s lien. Due to the fact the Sixth DCA’s order affirming the judgment did not include any findings, we can only speculate that the DCA also concluded BOA was entitled to judgment or that Buckingham failed to demonstrate a basis for reversal.

i The DCA’s order simply affirmed the final judgment without any elaboration. Since the Court did not include the basis for affirming the judgment, the substance of this article stems from the author’s personal knowledge of the trial and appellate court proceedings since Diaz Anselmo handled both matters.

ii See Buckingham v. Bank of Am., N.A., 230 So. 3d 923, 925 (Fla. 2d DCA 2017).

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