Houck Corp. v. New River, Ltd., Pasco, 2D04-1672.

CourtCourt of Appeal of Florida (US)
Citation900 So.2d 601
Docket NumberNo. 2D04-1672.,2D04-1672.
PartiesHOUCK CORPORATION, Appellant, v. NEW RIVER, LTD., PASCO, Appellee.
Decision Date09 February 2005

900 So.2d 601

HOUCK CORPORATION, Appellant,
v.
NEW RIVER, LTD., PASCO, Appellee

No. 2D04-1672.

District Court of Appeal of Florida, Second District.

February 9, 2005.

Rehearing Denied May 9, 2005.


900 So.2d 602
Robert E. Biasotti and Annette M. Lang of Carlton Fields, P.A., St. Petersburg, for Appellant

Elizabeth G. Rice of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., for Appellee.

STRINGER, Judge.

Houck Corporation seeks review of the final summary judgment in favor of defendant New River, Ltd., Pasco, in Houck's action to foreclose a mortgage. Houck argues that the trial court erred in determining that its foreclosure action was barred by a five-year statute of limitations pursuant to section 95.11(2)(c), Florida Statutes (2002). Houck asserts that the applicable statute of limitations is twenty years as set forth in section 95.281(1)(b), Florida Statutes (2002). We conclude that section 95.281 is a statute of repose that prescribes the enforceable life of a mortgage lien, but does not operate to preclude an action to foreclose the mortgage. Therefore, the trial court did not err in applying the five-year statute of limitations set forth in section 95.11(2)(c) for mortgage foreclosure actions.

In 1984, New River purchased an interest in a 16.5-acre parcel of real property located in Pasco County. In consideration for the purchase of this parcel, New River gave the seller two nonrecourse1 promissory notes. Under the terms of the notes, New River was required to pay in full any remaining principal balance that was outstanding on October 30, 1991.

New River secured the payment of the notes by executing a mortgage on the property. That mortgage was recorded on November 1, 1984. The recorded mortgage did not itself contain a specific maturity date. The recorded mortgage did, however, refer to the unrecorded notes and set forth an independent obligation to pay this underlying debt. The mortgage securing the payment of the two nonrecourse mortgage notes was assigned to Houck in January 2003, and the underlying notes were endorsed to Houck. The assignment of the mortgage to Houck was recorded in the public records.

On May 6, 2003, Houck filed an action to foreclose on the mortgage. Houck alleged that New River defaulted on the mortgage and the notes by failing to pay the principal balance when it became due on October 30, 1991. New River answered Houck's complaint, freely admitting that it failed to make the required principal payments due under the notes and mortgage on October 30, 1991. New River asserted as an affirmative defense that Houck's action was barred by the five-year statute of limitations in section 95.11(2)(c).

Both parties filed motions for summary judgment. New River contended that it was entitled to summary judgment based on the five-year statute of limitations in section 95.11(2)(c), and Houck contended that the applicable statute of limitations was twenty years, based on section 95.281(1)(b). The trial court entered summary judgment in favor of New River and dismissed Houck's complaint.

Section 95.11(2)(c), entitled "Limitations other than for the recovery of real property," provides that actions to foreclose a mortgage must be commenced within five years. Section 95.281(1)(b), entitled "Limitations; instruments encumbering real property," provides that a mortgage lien terminates after the expiration of twenty years from the mortgage date if the maturation of the note secured by the mortgage

900 So.2d 603
is not ascertainable from the record. If the maturation of the note is ascertainable from the record, the mortgage lien terminates five years from the date of maturity. § 95.281(1)(a)

Many courts have referred to both sections as "statutes of limitation." However, the statutes conflict under this interpretation because section 95.281(1)(b) would extend the amount of time to bring a foreclosure action from the five years articulated without exception in section 95.11(2)(c) to twenty years if the maturation of the note secured by the mortgage is not ascertainable from the record. The trial court determined that the sections do not conflict because section 95.281 is a statute of repose that prescribes the enforceable life of a mortgage lien but does not direct the limitation period for filing a foreclosure action. We agree.

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, ...

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28 cases
  • Deutsche Bank Trust Co. v. Beauvais, 3D14–575.
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2016
    ...an ultimate date when the lien of the mortgage terminates and is no longer enforceable." Houck Corp. v. New River, Ltd., Pasco, 900 So.2d 601 (Fla. 2d DCA 2005). In this case, because the maturity date is evident from the face of the mortgage (March 1, 2036), section 95.281(1)(a) sets this ......
  • Adhin v. Loans, JULY TERM 2010
    • United States
    • Court of Appeal of Florida (US)
    • October 1, 2010
    ...final element necessary for its creation occurs beyond the time period established by the statute; Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601, 603 (Fla. 2d DCA 2005). It provides a substantive right to be free from liability after the established time period. Id; see Am. Bankers ......
  • Lubonty v. R. Kenneth Barnard, Chapter 7 Tr., Als Hibiscus, LLC, 14-cv-3945 (ADS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 21, 2015
    ...is valid under the provisions of § 95.281 until May 1, 2040. (Id.) In so holding, Judge Trust relied on Houck Corp. v. New River Ltd., 900 So.2d 601 (Fla. Dist. Ct. App. 2d Dist. 2005). There, a mortgage holder appealed a trial court's decision to dismiss its foreclosure action against a ho......
  • Deutsche Bank Trust Co. v. Beauvais, 3D14-575
    • United States
    • Court of Appeal of Florida (US)
    • December 17, 2014
    ..."establishes an ultimate date when the lien of the mortgage terminates and is no longer enforceable." Houck Corp. v. New River, Ltd., 900 So. 2d 601, 603 (Fla. 2d DCA 2005). See also, Am. Bankers Life Assur. Co. of Florida v. 2275 West Corp., 905 So. 2d 189 (Fla. 3d DCA 2005). A statute of ......
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