We affirm the final summary judgment denying foreclosure of a
mortgage based up o n th e running of the statute of limitations.
Appellant, Broward County, sought to foreclose its mortgage with
appellee o n th e grounds that appellee breached a covenant in the
mortgage. This covenant obligated appellee to comply with certain
reporting requirements of the program under which the promissory note
and mortgage were given. The mortgage contained a specific clause
allowing acceleration based upon breach of the reporting covenants. It
also required the county to notify the appellee if the county exercised its
option to accelerate the note
The county made a written demand for the reporting information in
July 2003, and the five-year statute of limitations began to run on that
date. The county complied with the notification provision for breaches
occurring prior to July 2003. However, the county did not file a cause of
action based upon the breach of the reporting covenant until October
2009, and the five-year statute of limitations had expired in July 2008.
See ยง 95.11(2)(b) and (c), Fla. Stat. (2009).
Nevertheless, the reporting requirements are continuing duties under
the mortgage, and a subsequent breach of those duties could trigger
another demand by the county to cure the default in accordance with the
terms of the mortgage or face acceleration. Cf. Central Home Trust Co. of
Elizabeth v. Lippincott, 392 So. 2d 931, 933 (Fla. 5th DCA 1980) (statute
of limitations c a n run at different times from different installment
obligations under note). Our affirmance is therefore without prejudice to a
subsequent foreclosure action alleging future breaches of the
covenants at issue in this case, if they occur and if the county provides
proper notice of acceleration in accordance with the mortgage terms.
