Florida/Georgia Personal Injury & Workers Compensation

...Ross's note and mortgage, and therefore affirm this point without further discussion. We write further to address Alachua County's contention that foreclosure of Cheshire's mortgage, securing a $15,000 note, was barred by the statute of limitations, section 95.281(1)(a), Florida Statutes (1985), which provides that a mortgage lien terminates five years from the date of maturity of the note secured by the mortgage....

...Pitts, his third wife, and his adult son who resided in the home. The trial court entered a final judgment in favor of the Pastores at the conclusion of a bench trial. Three issues raised by Mr. Pitts warrant discussion. [2] First, Mr. Pitts contends that the statute of limitations, under section 95.281(1), Florida Statutes (1985), barred the Pastores' action. [3] Section 95.281(1) provides that a mortgage lien shall terminate: (a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity....

...The final judgment contains the following finding: "That the defense of the running of the Statute of Limitations is not available to the Defendants in this case because Florida Statutes § 95.11(2)(c) setting forth a five (5) year period must be read in pari materia with Florida Statutes § 95.281(3) which provides: `If the record of the mortgage shows that it secures an obligation payable in installments and the maturity date of the final installment of the obligation is ascertainable from the record of the mortgage, the time shall...

...We must assume from the above quoted findings of the trial court (which are undisputed by the record before us) that the maturity date of the final installment is ascertainable from the recorded mortgage. § 95.11, Florida Statutes (1975), provides that an action to foreclose a mortgage shall be commenced within five years. § 95.281, Florida Statutes (1975), provides *782 that if the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, the lien of the mortgage encumbering real property shall terminate five years after the date of maturity....

...oreclose accrued which occurred on August 1, 1975, at the earliest. The trial court correctly concluded, citing Locke v. State Farm Fire & Casualty Co., 509 So.2d 1375 (Fla. 1st DCA 1987), that the claim was not barred by the statute of limitations. Section 95.281, Florida Statutes (1991), is the limitation statute applicable to mortgages. Smith v. Branch, 391 So.2d 797 (Fla. 2d DCA 1980). The lien of a mortgage shall terminate twenty years after the date of the mortgage if the final maturity of an obligation secured by a mortgage is not ascertainable from the record of it. Section 95.281(1)(b)....

...the last element constituting a cause of action "on a negotiable or nonnegotiable note payable on demand ... is the first written demand for payment." Ruhl v. Perry, 390 So.2d 353 (Fla. 1980); Jones v. Rainey, 386 So.2d 1319 (Fla. 2d DCA 1980). [2] Section 95.281 is the limitation statute applicable to mortgages. Section 95.281(1)(b) provides that if maturity is not ascertainable from the record, the mortgage terminates twenty years after the date of the mortgage....

...Approval of a compromise of claim is inappropriate when the compromised claim is invalid as a matter of law. In re Planned Protective Services, 130 B.R. 94, 98 (Bankr.C.D.Ca.1991) citing In re Walsh Construction, Inc., 669 F.2d 1325, 1328 (9th Cir. 1982). Berger's claim has been determined invalid pursuant to Fla.Stat. § 95.281....

claim, and therefore the claim is subject to section 95.281(2), Florida Statutes, which provides that “[a]fter

...Taylor of Warlick, Fassett & Anthony P.A., Orlando, for Appellee Evelyn Denson. ANTOON, Judge. WRH Mortgage, Inc. (WRH), appeals a summary final judgment in favor of Michael and Jean Butler in this mortgage foreclosure action. The trial court ruled that section95.281, Florida Statutes (1995), extinguished WRH's right to foreclose on the Butler's mortgage five years after the debt secured by the mortgage became due. We reverse because 12 U.S.C. § 1821 (1995) preempts section 95.281 and grants WRH, an assignee of the Resolution Trust Corporation (RTC), six years within which to institute suit in a foreclosure matter....

...on] February 25, 1990". The Butlers failed to timely pay the balance. On April 6, 1995, more than five years after the debt became due, WRH sued the Butler's for foreclosure. In defending against WRH's motion for summary judgment, the Butlers raised section 95.281 as a statute of limitations defense....

...d. Kush v. Lloyd, 616 So.2d 415 (Fla.1992); Universal Engineering Corp., v. Perez, 451 So.2d 463 (Fla.1984). See also University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991). No Florida court has discussed or analyzed the specific issue of whether section 95.281 operates as a statute of repose. [3] However, in resolving the issue presented here, it is not necessary for us to categorize section 95.281 as a statute of repose or a statute of limitation because, regardless of the designation given the statute, the provisions of the statute are preempted by 12 U.S.C....

...e created. The same distinction applies here because 12 U.S.C. § 1821 does not create a cause of action and the rights WRH possessed under the mortgage were not state created. REVERSED and REMANDED. PETERSON, C.J., and HARRIS, J., concur. NOTES [1] 95.281 Limitations; instruments encumbering real property.— (1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage,..., shall terminate after the expiration of the following periods of time: (a) If the final...

...ration as conservator or receiver shall be ... in the case of any contract claim, the longer of ... six-year period beginning on the date the claim accrues; or ... the period applicable under State law. [3] Unfortunately, our courts have referred to section 95.281 as being both a statute of limitations and a statute of repose. See Verde Capital Corp., v. Gutierrez, 548 So.2d 698 (Fla. 3d DCA 1989), dismissed, 558 So.2d 20 (Fla.1990) (under section 95.281, the lien of a mortgage terminates five years after the date of maturity where the final maturity of the obligation is ascertainable from the record); USX Corp., v. Schilbe, 535 So.2d 719 (Fla. 2d DCA 1989)(the timeliness of an action to foreclose a mortgage is controlled by section 95.11 and the duration of the lien created by such mortgage is governed by section 95.281, a statute of repose). Cf. Monte v. Tipton, 612 So.2d 714 (Fla. 2d DCA 1993) (section 95.281 is the limitation statute applicable to mortgages); Alachua County v. Cheshire, 603 So.2d 1334 (Fla. 1st DCA 1992) (section 95.281 is the statute of limitations for foreclosure suits); Smith v. Branch, 391 So.2d 797 (Fla. 2d DCA 1980)(section 95.281 is the limitation statute applicable to mortgages)....

...after April 14, 1988 was barred. KRC, which purchased the note and mortgage on August 10, 1988, argued that the language of the mortgage prevailed and the statute of limitations did not commence until the maturity date of the note and mortgage. See § 95.281, Fla....

...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....

...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 *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....

...e are circumstances that would make it difficult to discover. Id. The limitations period provided in section 95.11(2)(c) does not affect the life of the lien or extinguish the debt; it merely precludes an action to collect the debt after five years. Section 95.281(1)(b), conversely, establishes an ultimate date when the lien of the mortgage terminates and is no longer enforceable. Section 95.051, Florida Statutes (2002), sets forth the times when the limitations period under section 95.11 is tolled, but expressly excludes section 95.281. Thus it is clear that section 95.11(2)(c) operates as a statute of limitation while section 95.281(1)(b) operates as a statute of repose. While the duration of a lien is determined by section 95.281(1)(b), section 95.281(1)(b) does not constitute a bar to the filing of an action to foreclose the mortgage unless it causes the lien to terminate before the statute of limitations under section 95.11(2)(c) has expired. Our determination of this issue is supported by the legislative history of sections 95.11 and 95.281....

...ssignment from the state of the tax sales certificate, and, provided, further that the mere redeeming of the tax certificate shall be insufficient for such subrogation purposes. (Emphasis supplied.) In 1974, section 95.28 was amended and replaced by section 95.281....

...Schilbe, 535 So.2d 719 (Fla. 2d DCA 1989). There, the court held that "[t]he timeliness of an action to foreclose a mortgage is controlled by section 95.11(2)(c), Florida Statutes (1987), and the duration of the lien created by such mortgage is governed by section 95.281, Florida Statutes (1987), a statute of repose." Schilbe, 535 So.2d at 719....

...recover on a promissory note and to foreclose a mortgage. The court answered the question in the negative and determined that the mortgage foreclosure action was time-barred by section 95.11(2)(c) and that the life of the lien had also expired under section 95.281....

...Layton filed a foreclosure action more than five years from the date of maturity but less than twenty years from the date of the mortgage. The trial court entered summary judgment against Layton based on its conclusion that the suit was barred by "the five-year statute of limitations" in section 95.281(1)(a). The issue on appeal was whether the date of maturity of the note was ascertainable from the record of it, and whether subsection (1)(a) or (1)(b) of section 95.281 therefore applied....

...This court held that the date of maturity was not ascertainable from the record and that "the applicable statute of limitations is twenty years" under subsection (1)(b). This court reversed the summary judgment on the foreclosure action. Id. *605 This court's reference in Layton to section 95.281 as a "statute of limitations" is unfortunate because, as we have already explained, section 95.281 is not a true statute of limitations, but a statute of repose. Regardless, this court did not address the issue of whether the statute of limitations in section 95.11(2)(c) barred the foreclosure action. The only issue decided by the Layton court was that section 95.281(1)(a) did not bar a foreclosure action on the mortgage....

...This decision is not based on a determination that the statute of limitations for filing a mortgage foreclosure action under section 95.11(2)(c) had not expired, but on a determination that the mortgage lien had not terminated because it was governed by the twenty-year period in section 95.281(1)(b)....

...Houck also relies on Monte v. Tipton, 612 So.2d 714, 716 (Fla. 2d DCA 1993); Pitts v. Pastore, 561 So.2d 297, 299 (Fla. 2d DCA 1990); and Smith v. Branch, 391 So.2d 797, 798 (Fla. 2d DCA 1980), in which this court determined that the twenty-year "statute of limitations" under section 95.281 precluded dismissal of the foreclosure actions. Again, to the extent that it has caused confusion in the interpretation of the relation between sections 95.11(2)(c) and 95.281, the reference to section 95.281 as a "statute of limitations" is unfortunate....

...However, in those cases, the causes of action had not yet begun to accrue; therefore, the five-year statute of limitations under section 95.11(2)(c) had not expired. In fact, in Smith, this court set forth an analysis consistent with that articulated by the trial court in this case. There, the court read sections 95.281 and 95.11 together to conclude that neither provision barred the foreclosure action because "[t]he twenty-year lien of the mortgage has not yet terminated, and appellants' cause of action did not accrue until the filing of the complaint herein." Smith, 391 So.2d at 798....

...New River failed to make any payments and defaulted in 1991. The mortgage was assigned to Houck in January 2003; shortly thereafter, Houck filed its foreclosure action. Pursuant to section 95.11(2)(c), the statute of limitations to file the foreclosure action expired on October 30, 1996; however, under section 95.281(1)(b), the mortgage lien was enforceable until November 1, 2004....

...closure action was barred by the five-year statute of limitations set forth in section 95.11(2)(c). At the time Houck filed suit, the five-year statute of limitations under section 95.11(2)(c) had expired, but the twenty-year statute of repose under section 95.281(1)(b) had not....

...2275 West defended on the ground that foreclosure was barred by the statute of limitations. Six months after the action was filed, American Bankers moved for summary judgment on its foreclosure claim. 2275 West also moved for summary judgment claiming that foreclosure was barred by section 95.281 of the Florida Statutes. On February 13, 2003, American Bankers' motion for summary judgment was granted. The following day, American Bankers moved for leave to reply to 2275 West's affirmative defenses regarding the bar of section 95.281 which had been asserted six an one half months earlier. In that reply, American Bankers sought to avoid 2275 West's claim that section 95.281 barred foreclosure of the American Bankers mortgage first because 2275 West was equitably estopped from raising this statutory defense by virtue of its "conduct in its dealings with [American Bankers]"; second, by virtue of correspondence between between the parties in 1993 which, according to American Bankers, constituted a modification agreement that would preclude the bar of section 95.281; and third, because American Bankers' interest in the property secured by the mortgage "should be protected by an equitable lien." On March 9, 2004, after hearing additional argument regarding American Bankers' avoidances, a final judgment of foreclosure was entered in American Bankers' favor. We reverse the judgment because by the time this action was commenced in March 2002, there was no valid lien to enforce. Section 95.281(1)(a), of the Florida Statutes provides that the lien created by a mortgage terminates five years after the maturity date of the obligation it secures where the date of maturity may be ascertained from the record: (1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage ... shall terminate after the expiration of the following periods of time: (a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity. § 95.281(1)(a), Fla....

...e are circumstances that would make it difficult to discover. Id. The limitations period provided in section 95.11(2)(c) does not affect the life of the lien or extinguish the debt; it merely precludes an action to collect the debt after five years. Section 95.281(1)(b), conversely, establishes an ultimate date when the lien of the mortgage terminates and is no longer enforceable. The maturity date of the note secured by American Bankers' mortgage, which may be ascertained from the record, is September 15, 1993. Under section 95.281(1)(a), American Bankers had until September 15, 1998 to enforce its lien....

...First Federal of Miami, Inc., 429 So.2d 64 (Fla. 3d DCA 1983), and observing "[i]n order to be binding, a contract must also be definite and certain as to the parties' obligations to one another"). The correspondence also does not comply with the recordation requirements mandated by section 95.281(2), of the Florida Statutes, which extends the life of a mortgage lien "[i]f an extension agreement executed by the mortgagee or the mortgagee's successors in interest and the mortgagor or the mortgagor's successors in interest is reco...

...The complaint states a cause of action for mortgage foreclosure. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. Statute of Limitations In Florida, the Statute of Limitations on mortgage foreclosures with an ascertainable date of maturity is five (5) years. § 95.111 and § 95.281, Fla.Stat. (1982 & Supp.1996). Florida Statute § 95.281 addresses limitations on instruments encumbering real property and provides in pertinent part: (1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage ......

..., the time shall be extended as follows: (a) If the final maturity of the obligation, as extended, secured by the mortgage is ascertainable from the record of the extension agreement, 5 years after the date of maturity of the obligation as extended. § 95.281, Fla.Stat....

...The modification agreement, which was entered into by Ollie Adkinson and Ellis National Bank of Tampa, specifically stated that "the entire balance of interest and principal shall be due and payable on the 9th day of August 1989." Application of Florida Statute § 95.281(2)(a) to the modification agreement clearly determines that the monthly payments were to end August 9, 1989, and the statute of limitations would bar a cause of action for foreclosure after August 9, 1994, five (5) years from the date of maturity....

...(The unsupported allegation of partial payment is not material to our deliberations.) *334 Geelhoed lived in the house until her death on October 5, 1985. The period permitted for enforcement of the note and mortgage by the statute of limitations was five years. § 95.281 Fla....

five-year statute of *7repose set forth in section 95.281(1). The trial court held a hearing on these

...rtgage loan on the property from First Federal Savings. In October, 1976, Bertha Corwin assigned her vendor's lien to the appellees herein who filed a complaint to foreclose the lien on November 11, 1976. Appellants asserted at summary judgment that § 95.281 Fla....

quiet title action arguing inter alia that section 95.281(1), Florida Statutes (2012), provides in part

liens with no ascertainable maturity date. See § 95.281(l)(b), Fla. Stat. (1995).1 The City also raises

...On June 30, 1978, an action to foreclose a mortgage on real property was filed by appellees. Appellants filed an answer and affirmative defenses raising the issue of statute of limitations. The only issue at trial was the determination of the applicability of the statute of limitations contained in section 95.281(1)(a) and (1)(b), Florida Statutes (1981)....

...There was an oral understanding between counsel that the trial would be conducted similar to an argument for summary judgment in that there would be no presentation of testimony because there were no questions of fact. At trial appellees took the position that the applicable subsection of Florida Statute 95.281 was subsection (1)(b); that the final maturity of the note was not ascertainable from the record of it, and that the statute of limitations was therefore twenty years. Appellants took the position that Florida Statute 95.281(1)(a) was applicable in that the final maturity of the note was ascertainable from the record and that the five-year statute of limitations should apply....

...ublication costs. Based upon this stipulation and settlement of the case, counsel for appellees cancelled the foreclosure sale. The agreement was never carried through and this appeal followed. Appellants argue that the trial court erred in applying section 95.281(1)(b)....

...§ 95.11(2)(b)), the one-year period applicable to specific performance of a contract ( id. § 95.11(5)(a)), or the four-year period applicable to equitable or other actions ( id. 95.11(3)(k) & (3)(p)). Simonetti, in contrast, suggests the five-year period applicable to the foreclosure of certain mortgage liens ( id. § 95.281(1)(a)), or the five year period applicable to actions on a written instrument ( id....

date of the debt secured by the mortgage. See § 95.281, Fla. Stat. (2005). The face of the promissory

...s an intervening bankruptcy proceeding had an over-riding effect. The timeliness of an action to foreclose a mortgage is controlled by section 95.11(2)(c), Florida Statutes (1987), and the duration of the lien created by such mortgage is governed by section 95.281, Florida Statutes (1987), a statute of repose....

...osure of the mortgage they held or the foreclosure of their resulting lien, the result is the same. That is to say, foreclosure of the mortgage is time barred by section 95.11(2)(c) and the enforceable life of the mortgage lien ended by operation of section 95.281 prior to the commencement of their action. We note that none of the tolling grounds contained in section 95.051 is involved in the present matter because of the express exception from that statute of section 95.281....

...The next case cited was Zlinkoff v. Von Aldenbruck, 765 So.2d 840 (Fla. 4th DCA 2000). In Zlinkoff, this court found a foreclosure action was barred as untimely. Id. at 843. The recorded mortgage stated a final maturity date of February 1992. Id. at 842. Under section 95.281, Florida Statues, which concerns limitations on foreclosure actions, the right to pursue an action for foreclosure terminated in February 1997, five years after the maturity date on the recorded mortgage. Id. There was evidence that there was an oral agreement and an unrecorded written agreement to extend the final maturity date. Id. However, this court found that section 95.281 requires an extension of the final maturity date to be recorded in order to extend the time to file a foreclosure action....

...As *606 the extensions were not recorded, there was no valid extension for the purposes of pursuing a foreclosure action against Zlinkoff who acquired the property in October 1998. Id. at 842-43. In the instant case, because there is no issue raised involving the application of section 95.281 or whether a party has a right to pursue a foreclosure action, Zlinkoff does not apply....

five-year statute of repose under Florida Statute § 95.281(l)(a); and that the allegedly invalid mortgage

five-year statute of limitations contained in section 95.281, Florida Statutes (1989), applied to bar Layton’s

Florida limited partnership. . § 95.281(1)(a) Fla.Stat. (1989). . § 95.281(l)(b), Fla.Stat. (1989).

foreclosure entered against him, arguing that under section 95.281, Florida Statutes (1999), the foreclosure action

statute of repose for foreclosure ■ actions (section 95.281 of the Florida Statutes) with the statute of

time-barred pursuant to the limitations provisions of section 95.281, Florida Statutes (2001). The case was tried

the bank’s conduct in the foreclosure case). Section 95.281(l)(a), Florida Statutes, clearly and unambiguously

...iation is entitled to final summary judgment because when the federal district court quieted title in the name of the Homeowners Association, Razak held no valid lien interest in the subject property and the title passed free and clear of all liens. Section 95.281(1)(a), Florida Statutes (2004), provides that the lien of a mortgage encumbering real property terminates five years after the date of the maturity of the note if the maturity date can be ascertained from the record of the note and mortgage....

...The note that Bhadelia *619 executed in favor of Razak on January 7, 1993, stated that the note was a balloon note that matured five years from the date of execution. Accordingly, by operation of law, the lien of the mortgage given by Bhadelia to Razak to secure the note expired on January 7, 2003. Section 95.281 is considered to be a statue of repose rather than a statute of limitations....

...the cause of action does not exist. Id. Based on the operation of this statute of repose, the lien securing the promissory note terminated on January 7, 2003, and the Homeowners Association obtained title free of this encumbrance. Razak argues that section 95.281 is not controlling here because the future advances clause of the mortgage provides him the protection provided by section 697.04(1)(a), Florida Statutes (2004), which states: Any mortgage or other instrument given for the purpose of c...

...Razak maintains that based on this language, the future advance clause represents a lien on the property for twenty years even though no future advances have been made. Razak thus suggests that the provisions of section 697.04 prevail over those of section 95.281 when a future advance clause is contained in the mortgage and that accordingly, the lien securing the initial promissory note in the instant case was valid for twenty years regardless of whether future advances were actually made....

...Further, the statute creates the lien only for advances that are actually made. The record before us evidences no future advances made by Razak to Bhadelia that would effectuate the provisions of this statute. Accordingly, we conclude that pursuant to section 95.281, the lien created by the mortgage to secure the promissory note terminated five years after the note matured....

argued that Florida's statute of repose, Fla. Stat. § 95.281, precluded a foreclosure action by U.S. Bank.

CURIAM. Affirmed. § 95.11(2)(c), Fla.Stat. (1979); § 95.281(3), Fla.Stat. (1979); Carpenter v. Florida Central

as a mortgage and that, pursuant to Fla. Stat. § 95.281, the lien of a mortgage terminates five years

duration of a mortgage lien is governed by Fla. Stat. § 95.281(1)(a), which provides that a mortgage lien with

against the real property which would require section 95.281, Florida Statutes, to be the applicable statute

...Lender’s position. We find the trial court correctly determined that the subject mortgage “shall have no force and effect” because the lien of the subject mortgage terminated five years after its stated maturity date of October 1, 2008. See § 95.281(1)(a), Fla. Stat. (2013). Prior to the termination of the lien, the Lender took no action to foreclose the mortgage, and at no time did the parties execute and record an agreement extending the maturity date of the mortgage. See § 95.281(2), Fla....

...3d DCA 2005) (rejecting mortgagee’s “claim that its lien is still valid because correspondence between the parties . . . extended the maturity date of the mortgage” where the correspondence was not only “indefinite in all particulars,” but “also does not comply with the recordation requirements mandated by section 95.281(2), of the Florida Statutes, which extends the life of the mortgage lien ‘[i]f 2 an extension agreement executed by the mortgage . . . and the mortgagor . . . is recorded’” (brackets in original) (quoting § 95.281(2))); Zlinkoff v. Von Aldenbruck, 765 So. 2d 840, 842 (Fla. 4th DCA 2000) (holding that section 95.281 requires that an extension of the maturity date set forth in the mortgage must be recorded in order to extend the time to file a foreclosure action, and that the parties did not enter into a valid extension although there was eviden...

ORDERED. . Fla. Stat. § 95.11(2)(c). . Fla. Stat. § 95.281(1)(a). . (Debtor’s Fix g Ex. 1 ¶ 6). . (Debtor’s

obligation either orally or in writing. Under section 95.281, Florida Statutes (Supp.1974), the lien of

...In response, six of those unit owners filed motions to dismiss, asserting that Pathfinder's foreclosure action was barred by the five-year statute of limitations set forth in section 95.11(2)(c), Florida Statutes (2013), and by the five-year statute of repose set forth in section 95.281(1)....

...limitations was erroneous. On remand, the unit owners may pursue this as an affirmative defense if they so choose. The second basis articulated by the trial court for dismissing Pathfinder's complaint was the statute of repose found in section 95.281(1)....

...discover. Id. Thus, while both a statute of repose and a statute of limitations may bar a party from proceeding with an action, they do so for two different reasons and based on two different legal theories. As a statute of repose, section 95.281(1) operates to terminate a mortgage lien and render it completely unenforceable if the statutory conditions are satisfied....

...note, it did not identify the maturity date of the loan agreement. Hence, because the maturity date of all of the obligations secured by the recorded mortgage was not ascertainable from face of the record of the recorded mortgage, the twenty-year statute of repose of section 95.281(1)(b) applies....

...Since Pathfinder's foreclosure complaint was filed before the expiration of that twenty-year period, its action is not barred by the statute of repose, and the trial court erred by dismissing the complaint on this basis. We recognize that this application of section 95.281(1) appears to conflict with the purpose of recording documents in the public records....

...The law should encourage specificity in recorded - 11 - documents—not ambiguity. Nevertheless, it is this court's role to apply the law as written rather than to question the wisdom of the legislature in enacting those laws. Therefore, we are constrained by the language of section 95.281(1) to conclude that the statute of repose does not bar Pathfinder's foreclosure action. For both of these reasons, we reverse the dismissal of Pathfinder's foreclosure complaint and remand for further proceedings....

termination of a mortgage lien is governed by Fla. Stat. 95.281(l)(b), Florida’s statute of repose. Under

the trial court properly found, pursuant to section 95.281(l)(a), Florida Statutes (1999), the mortgage

JOHNSTON, L.V., III, Associate Judge, concur. . § 95.281(l)(a), Fla.Stat. . See, e.g., First American

...The issues are subject to separate statutory consideration and analysis. “[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.” Matos, 2014 WL 3734578, at *3. Section 95.11(2)(c) is a statute of limitations; section 95.281 is a statute of repose, 23 and determines the duration of a mortgage lien....

...final element necessary for its creation occurs beyond the time period established by the statute.” American Bankers, 905 So. 2d at 191 (quoting WRH Mortgage, Inc. v. Butler, 684 So. 2d 325, 327 (Fla. 5th DCA 1996)). Both parties agree that the applicable subsection is 95.281(1)(a)....

...However, the parties disagree on the construction of that provision and its application to the instant case. The Association contends that Deutsche Bank’s acceleration of the note accomplishes an acceleration of the maturity date of the note itself. The language of section 95.281(1)(a) provides that the duration of the lien is “5 years after the date of maturity.” Under the facts of this case, the Association argues, the date of maturity became the date of acceleration when the Initial Action was filed on January 23, 2007, and therefore the mortgage lien terminated January 23, 2012, five years after that date of acceleration, and is extinguished.6 Deutsche Bank contends, and we agree, that the definitive time limitation established by section 95.281(1)(a) is based upon the fact that the final maturity “is ascertainable from the record” of an obligation secured by a mortgage. The 6 For this proposition, the Association cites to Casino Espano de Habana, Inc. v. Bussel, 566 So. 2d 1313 (Fla. 3d DCA 1990). However, we find Casino inapposite, as it did not involve the construction or application of section 95.281 or a determination of the duration of a mortgage lien. 25 Legislature, by its express language, provided that the mortgage lien under section 95.281(1)(a) would terminate five years after a maturity date that can be determined from the face of a recorded document.7 The Association’s proposed date of maturity (i.e., January 23, 2007, the date of acceleration) cannot be determined from the face of the recorded mortgage. Rather, the face of the recorded mortgage in the instant case reveals a maturity date of March 1, 2036. Therefore, and pursuant to section 95.281(1)(a), the mortgage lien remains valid until March 1, 2041, five years from the date of maturity as reflected in the recorded mortgage securing the obligation....

under the factual circumstances here to toll section 95.281(1), Florida Statutes (2018). For the following

date for real estate mortgages is Fla.Stat.Ann. § 95.281(3) (West 1982), which provides: If the record

action to collect the debt after five years. Section 95.281(1)(b), conversely, establishes an ultimate

the Hardeys’ count for declaratory relief. Section 95.281(2) provides: “After 20 years from the recording

5-year statute of limitation because Fla. Stat. § 95.281(l)(a)1 operates as a statute of repose and terminates

in favor of the Association”); see § 95.281(1)(a), Fla. Stat,.(2013) (providing that the “lien