The Judge’s Guide To Foreclosure
1. Foreclosure is the enforcement of a security interest by judicial sale of collateral. All mortgages shall be foreclosed in equity. § 702.01, Fla. Stat. (2013).
2. Definitions:
(a) Mortgage: any written instrument securing the payment of money or advances including liens to secure payment of assessments for condominiums, cooperatives, and homeowners’ associations. § 702.09, Fla. Stat. (2013).
A mortgage creates only a specific lien against the property; it is not a conveyance of legal title or of the right of possession. § 697.02, Fla. Stat. (2013); Fla. Nat’l Bank & Trust Co. of Miami v. Brown, 47 So. 2d 748 (Fla. 1949).
(b) Mortgagee: refers to the lender; the secured party or holder of the mortgage lien. § 721.82(6), Fla. Stat. (2013).
(c) Mortgagor: refers to the obligor or borrower; the individual or entity who has assumed the obligation secured by the mortgage lien. § 721.82(7), Fla. Stat. (2013). The mortgagor holds legal title to the mortgaged property. Hoffman v. Semet, 316 So. 2d 649, 652 (Fla. 4th DCA 1975).
3. To foreclosure the mortgage lien and extinguish equities of redemption, secured parties must file a civil action. § 45.0315, Fla. Stat. (2013).
Statute of Limitations
1. Five-year statute of limitations period – applies specifically to mortgage foreclosure actions. § 95.11(2)(c), Fla. Stat. (2013); Farmers & Merch. Bank v. Riede, 565 So. 2d 883, 885 (Fla. 1st DCA 1990).
(a) In the absence of a contractual provision regarding governing law, a contract is governed by the law of the state in which the contract was made. Sims v. New Falls Corporation, 37 So. 3d 358, 360 (Fla. 3d DCA 2010) (Florida statute of limitations law applied to action on the promissory note).
2. One-year statute of limitations period for deficiency judgments. § 95.11(5)(h), Fla. Stat. (2013). This 2013 change applies “to any action commenced on or after July 1, 2013, regardless of when the cause of action accrued. However, any action that would not have been barred under s. 95.11(2)(b), Florida Statutes 2012, before the effective date of this act must be commenced within 5 years after the action accrued or by July 1, 2014, whichever occurs first.” Ch. 2013-137, § 2, Laws of Fla.
