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.
What case is this Mr. Weidner? I don’t think that this would apply if the bank actually accelerated the mortgage in a foreclosure action. The bank was able to fix the issue by sending a new notice of intent to accelerate because they never actually accelerated. What are your thoughts?
That’s seem screwy, until I re-read.
The court UPHELD the summary judgment based on the running of the statue of limitations.
The court UPHELD the statue of limitations from the 2003 breach.
But since the mortgage is still in place, and the note is still being paid, there could be a future breach, or even a future action over a past breach, SO LONG as the alleged breach plead is less than the statue of limitations, probably 5 years depending on complaint.
However I don’t see extrapolation to a continuing cause of action over a prior breach of payment if over 5 years, because the breach is a point in time, unless their is some form of payment and re-reinstatement which would re-set the clock, as in the instant action.
You can’t argue party A failed to pay party B in 1902 and continues to this day to fail to pay. This is why the court UPHELD the application of the start of the running of the statute of limitations to the date of the breach and not beyond. UPHELD the SOL.
In the case addressed by the Court there was continuing payments. If a plaintiff tries to use this case, which I doubt they would, the world is DISTINGUISHED from….
Why Broward County was funding a mortgage is another question entirely !