## Facts

- Bankers Trust held a mortgage on real property originally owned and mortgaged by Shana English.
- English conveyed title to Lesa Investments before Bankers Trust filed its first foreclosure action.
- In early 2002, Bankers Trust sued only English in the first foreclosure and did not join Lesa Investments, the fee simple owner.
- The first action resulted in a final judgment fixing the debt at $73,839.75 and a foreclosure sale at which Bankers Trust purchased the property.
- After the sale, Bankers Trust learned that Lesa Investments held fee simple title and had not been joined.
- Bankers Trust then filed a second, de novo foreclosure action naming Lesa Investments and again naming English (and another added party).
- English did not dispute the payment default; she argued that the prior foreclosure judgment and sale barred the second action as to her.

## Issues

1. Whether a foreclosure judgment and sale entered without joining the fee simple owner are void.
2. Whether a void foreclosure judgment and sale bar a later, properly constituted foreclosure action under res judicata, including as to the original mortgagor.
3. Whether the mortgagee must first obtain relief from the prior void judgment under Florida Rule of Civil Procedure 1.540(b)(4) before filing the second foreclosure and joining the original mortgagor.

## Decision

- The appellate court affirmed summary judgment of foreclosure for Bankers Trust in the second action.
- The court held the first foreclosure judgment and sale were void because the fee simple owner was an indispensable party and was not joined.
- Because the first proceeding was void, res judicata did not bar the second foreclosure or English’s joinder.
- The court held Bankers Trust was not required to file a Rule 1.540(b)(4) motion to vacate the first judgment before pursuing the second action.
- With no disputed material facts and default undisputed, summary judgment in the second action was proper.

## Legal Principles

- In a mortgage foreclosure, the fee simple owner is an indispensable party; failure to join the fee owner renders the foreclosure judgment and resulting sale void.
- A void foreclosure has no effect to transfer the fee owner’s title.
- A void judgment does not support res judicata and does not bar a subsequent foreclosure action properly joining indispensable parties.
- When the prior foreclosure is void for nonjoinder of an indispensable party, the mortgagee may proceed with a new foreclosure without first vacating the void judgment under Florida Rule of Civil Procedure 1.540(b)(4).

## Conclusion

The court upheld a second foreclosure action that joined the true fee simple owner and again included the original mortgagor, ruling that the earlier foreclosure—entered without an indispensable party—was void and therefore could not bar the new action under res judicata.


English v. Bankers Tr. Co. of Cal., N.A., 895 So. 2d 1120 (Fla. Dist. Ct. App. 4th Dist. 2005)