Florida Courts Will NOT Find The Statue Applies
Lots of giddy attention lately about the potential for a statute of limitations in foreclosure cases that would make those debts unenforceable. But here’s the thing….there is no way Florida Courts are going to issue a statewide finding that hundreds of millions of dollars in mortgage debt is unenforceable. The Florida Supreme Court is going to twist itself into legal knots with whatever rationale it needs to assert in order to make sure that the banking institutions that are the donors and patrons of all of Florida state government can still enforce their debts.
A large part of my analysis is based on years of effort and watching first hand as hundreds of thousands of foreclosure cases wind their way through Florida’s trial and appellate courts. And what is the lesson from those cases? The lesson, with very few exceptions is that banks win. I’ve backed the banks and their attorneys into trial corners so many times only to watch the judge either tell the attorneys explicitly how to get out or just carve the way out for them…and I’ve seen first hand how appellate courts provide legal and factual analysis that wasn’t even part of the trial record…just so banks can win. And so this is what’s going to happen….The Florida Supreme Court will adopt the Singletary v. Greymar analysis or, perhaps even more effectively, they will adopt a new form of legal analysis, which will be known as the “Pathfinder” analysis:
A “statute of limitations” is a procedural statute that prevents the enforcement of a cause of action that has accrued. See WRH Mortgage, Inc. v. Butler, 684 So. 2d 325, 327 (Fla. 5th DCA 1996). It does not determine the underlying merits of the claim but merely cuts off the right to file suit on that claim. Allie v. Ionata, 503 So. 2d 1237, 1240-41 (Fla. 1987). A “statute of repose,” in contrast, “is a substantive statute which not only bars enforcement of an accrued cause of action but may also prevent the accrual of a cause of action where the final element necessary for its creation occurs beyond the time period established by the statute.” WRH Mortgage, 684 So. 2d at 327. It provides a substantive right to be free from liability after the established time period. Parham v. Balis, 704 So. 2d 623, 626 (Fla. 2d DCA 1997), approved, Musculoskeletal Inst., Chartered v. Parham, 745 So. 2d 946 (Fla. 1999). Thus, the statute of repose does not work to provide a time limitation for filing a suit after the accrual of the cause of action, but prevents the cause of action from arising after its time limitation. Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So. 2d 201, 208 (Fla. 2003). The purpose of a statute of repose is to set a definitive time limitation on a valid cause of action even if there are circumstances that would make it difficult to discover. Id.
Thus, while both a statute of repose and a statute of limitations may bar a party from proceeding with an action, they do so for two different reasons and based on two different legal theories.
As a statute of repose, section 95.281(1) operates to terminate a mortgage lien and render it completely unenforceable if the statutory conditions are satisfied. That section provides in pertinent part:
(1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage, except those specified in subsection (5), shall terminate after the expiration of the following periods of time:
(a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity.
(b) If the final maturity of an obligation secured by a mortgage is not ascertainable from the record of it, 20 years after the date of the mortgage, unless prior to such time the holder of the mortgage:
1. Rerecords the mortgage and includes a copy of the obligation secured by the mortgage so that the final maturity is ascertainable; or
2. Records a copy of the obligation secured by the mortgage from which copy the final maturity is ascertainable and by affidavit identifies the mortgage by its official recording data and certifies that the obligation is the obligation described in the mortgage;
in which case the lien shall terminate 5 years after the date of maturity.
(Emphasis added.) In determining whether the five-year or the twenty-year statute of repose applies, the dispositive question is whether the final maturity date of the obligation or obligations secured by the recorded mortgage is ascertainable from the face of the recorded mortgage itself. A maturity date is “ascertainable from the record of it” if the maturity date can be determined by reading the public records. See, e.g., Layton v. Bay Lake Ltd. P’ship, 818 So. 2d 552, 553 (Fla. 2d DCA 2002). If so, the statute of repose is five years from the date of maturity. If not, the statute of repose is twenty years.
Here, there were two obligations secured by the mortgage — the note and the loan agreement. While the recorded mortgage identified the maturity date of the note, it did not identify the maturity date of the loan agreement. Hence, because the maturity date of all of the obligations secured by the recorded mortgage was not ascertainable from face of the record of the recorded mortgage, the twenty-year statute of repose of section 95.281(1)(b) applies. Since Pathfinder’s foreclosure complaint was filed before the expiration of that twenty-year period, its action is not barred by the statute of repose, and the trial court erred by dismissing the complaint on this basis.
We recognize that this application of section 95.281(1) appears to conflict with the purpose of recording documents in the public records. Documents such as mortgages are recorded in the public records to provide a measure of certainty about the ownership of real property and the encumbrances on that property and to protect subsequent purchasers from claims arising from unrecorded instruments. See, e.g., Mayfield v. First City Bank of Fla., 95 So. 3d 398, 401 (Fla. 1st DCA 2012). Recordation is also the source of imputing constructive knowledge of claims to subsequent purchasers. Id. With those purposes in mind, it seems counterintuitive — and counterproductive — to provide a longer statute of repose when the recorded documents provide less certain information. The law should encourage specificity in recorded documents — not ambiguity. Nevertheless, it is this court’s role to apply the law as written rather than to question the wisdom of the legislature in enacting those laws. Therefore, we are constrained by the language of section 95.281(1) to conclude that the statute of repose does not bar Pathfinder’s foreclosure action.