In St. Louis Condo. Ass’n, Inc. v. Nationstar Mortg. LLC, 14-21827-CIV, 2014 WL 6694780, at *2 (S.D. Fla. 2014) the Southern District of Florida analyzed the statute of limitations and statute of repose for enforcement of a mortgage and concluded that the statute of limitations had not expired.
Plaintiff claims that the expiration of the statute of limitations bars Defendant from enforcing the Note and Mortgage. The Court finds Plaintiff s application of the statute of limitations contrary to well-established Florida law.
Florida Statute § 95.11(2)(b-c) creates a five-year statute of limitations for mortgage foreclosure actions. See Fla. Stat. § 95.11(2)(b-c). The limitations period begins to run either when the last payment of the mortgage is due or, as in this case, when the mortgagee exercises a right to accelerate the total debt because of a default. See Greene v. Bursey, 733 So.2d 1111, 1114–5 (Fla. 4 th DCA 1999). Section 95.11(2)(c) does not change the life of the lien or cancel the debt. Rather, it “merely precludes an action to collect on the debt after five years.” See Espinoza v. Countrywide Home Loans Servicing, L.P., Case No. 14–20756–CIV–Altonaga, 2014 WL 3845795, at *3 (S.D.Fla. Aug.5, 2014) (quoting Houck Corp. v. New River, Ltd., 900 So.2d 601, 603 (Fla. 2d DCA 2005). Indeed, Florida Statute § 95.281(1), a statute of repose, governs the duration of a mortgage lien and provides that the lien terminates five years after the date of maturity of the obligation secured by the mortgage. See Fla. Stat. § 95.291(1). “A ‘statute of limitations‘ is a procedural statute that prevents the enforcement of a cause of action that has accrued … Conversely, a ‘statute of repose’-like that of § 95.291(1)-establishes an ultimate date when the lien or mortgage terminates and is no longer enforceable whether a claim has accrued by that date or not.” Matos v. Bank of New York, et al., Case No. 14–21943–CIV–Moreno, 2014 WL 3734578 at *3 (S.D.Fla. July 28, 2014) (noting that a ‘statute of limitations‘ is a shield that may be used as an affirmative defense; a ‘ statute of repose’ is a sword that may terminate a lien); see also Espinoza, 2014 WL 3845795 at *3 (holding that the duration of a lien is governed by a statute of repose). The express maturity date of the Note and Mortgage is November 1, 2036. See Compl. at Ex. B. Accordingly, the Mortgage lien will not terminate until 2041 and Plaintiff’s quiet title action is without merit.