Re: Florida Statute of Limitations in Promissory Notes
I don't find the statute of limitations to even be internally consistent - a foreclosure action is an action "other than for recovery of real property"? Rather than trying to parse the statutes and review... i'm not sure how much case law... I'll defer to this analysis.
Quote:
Quoting Florida Foreclosure Defenses - Statute of Limitations
The basic principles were set forth in one case: “Section 95.11(2)(c), Florida Statutes (1979), provides that an action to foreclose a mortgage shall be commenced within five years. Section 95.03(1) provides that generally a cause of action accrues when the last element constituting the cause of action ‘on a negotiable or non-negotiable note payable on demand ... is a first written demand for payment.’” Smith v. Branch, 391 So.2d 797, 798 (Fla. 2d DCA 1980), citing Ruhl v. Perry, 390 So.2d 353 (Fla. 1980); see also Jones v. Rainey, 386 So.2d 1319 (Fla. 2d DCA 1980).
For a mortgage without an acceleration clause, an action is timely where the mortgagee files more than five years after default, but less than five years after final maturity. Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987); Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977); see also Smith v. Federal Deposit Ins. Corp., 61 F.3d 1552, 1561 (11th Cir. 1995) (when promissory note secured by mortgage contains optional acceleration clause, foreclosure action accrues, and statute of limitations begins to run on the earlier of the date when acceleration clause is invoked or stated date of maturity). If the maturity of a mortgage is not ascertainable from the record, the mortgage lien terminates 20 years after the date of the mortgage.
Even before the statute of limitations has expired on a foreclosure claim, the lender can, in exceptional circumstances, forfeit the right to foreclose by virtue of delay and resulting prejudice to the borrower that constitutes laches. Laches can arise in the foreclosure context when the mortgagee inexcusably delays in bringing its action, resulting in circumstances making it inequitable to permit the plaintiff to enforce its claim against the defendant.
It would thus seem to me that once the five year period set forth in Sec. 95.11(2)(c) expires, the lender cannot use foreclosure to recover the money but will ordinarily still be able to pursue the debt under other theories (such as contract), but the facts can significantly affect when that five year period starts to run.