Layton v. Bay Lake Ltd. Partnership, 2D00-5559.
| Citation | 818 So.2d 552 |
| Decision Date | 23 January 2002 |
| Docket Number | No. 2D00-5559.,2D00-5559. |
| Parties | Carol S. LAYTON, Appellant, v. BAY LAKE LIMITED PARTNERSHIP and United Bank and Trust, Appellees. |
| Court | Florida District Court of Appeals |
Rod B. Neuman and Larry M. Segall, of Gibbons, Cohn, Neuman, Bello, Segall & Allen, P.A., Tampa, for Appellant.
Laura E. Prather and Rebecca H. Steele, of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, and L. Geoffrey Young, of Ruden, McClosky, Smith, Schuster & Russell, P.A., St. Petersburg, for Appellees.
Carol S. Layton challenges the final summary judgment entered against her in her foreclosure action against Bay Lake Limited Partnership and United Bank and Trust.1 Since United Bank holds a mortgage that is inferior to Layton's mortgage, United Bank was named as a party defendant in Layton's suit. Layton argues that the trial court erred in finding that her foreclosure action was barred by a five-year statute of limitations. We agree and reverse.
Layton was the holder of an unrecorded $110,000 promissory note, executed by Bay Lake on April 4, 1989, with a specified maturity date of April 1, 1992. The note was secured by a recorded mortgage on real property in Hillsborough County. The mortgage document, however, contained no maturity date.
When Layton filed her foreclosure action February 4, 1999, nearly ten years after the note was executed, the trial court determined that the five-year statute of limitations contained in section 95.281, Florida Statutes (1989), applied to bar Layton's action. We disagree. Section 95.281 specifies that a lien of a mortgage terminates five years after the date of maturity of the obligation if the date of maturity is "ascertainable from the record of it." However, that same statute provides that a lien of mortgage expires twenty years after the date of the mortgage if the maturity date is not "ascertainable from the record of it." The order granting summary judgment specifically found that "the maturity date is ascertainable," and, since more than five years had elapsed since that date, the foreclosure of the mortgage was time-barred by section 95.281. Although the recorded mortgage did not contain a maturity date, it specifically referenced the unrecorded note:
Bay Lake argues that since the terms of the note were incorporated by reference into the mortgage, the date of maturity was ascertainable. However, the statute specifically states that the date must not only be ascertainable, but "ascertainable from the record of it." In other words, the maturity date must be ascertainable by one who reads the county...
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