In re Anthony

534 B.R. 834, 25 Fla. L. Weekly Fed. B 319, 2015 Bankr. LEXIS 2526, 2015 WL 4522971
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedJuly 20, 2015
DocketCase No.: 6:14-bk-09462-CCJ
StatusPublished
Cited by3 cases

This text of 534 B.R. 834 (In re Anthony) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Anthony, 534 B.R. 834, 25 Fla. L. Weekly Fed. B 319, 2015 Bankr. LEXIS 2526, 2015 WL 4522971 (Fla. 2015).

Opinion

ORDER

Cynthia C. Jackson, United States Bankruptcy Judge

This case came before the Court for a final evidentiary hearing on May 13, 2015, on the debtor’s Objection to Claim No. 4 of U.S. Bank. N.A. (Doc. No. 29; the “Objection”) and Motion to Determine Secured Status (Doc. No. 37; the “Motion”). For the reasons set forth below, the Objection is overruled without prejudice and the Motion is denied without prejudice.

Background

This dispute concerns whether U.S. Bank holds a claim that is enforceable against the debtor’s real property. U.S. Bank alleges that it holds a note secured by a mortgage in the debtor’s real property. By the Objection and the Motion, the debtor alleges that U.S. Bank’s note and mortgage are unenforceable because any foreclosure action is barred by the statute of limitations and the statute of repose.

Florida law provides a five-year statute of limitations for foreclosure actions; that is, a creditor must bring a foreclosure action within five years of a default.1 Florida law also provides a five-year statute of repose; that is, if the final maturity date of a note and mortgage is “ascertainable from the record of it”, then the mortgage lien terminates “5 years after the date of maturity”.2

U.S. Bank initiated a foreclosure action on its mortgage in state court in 2009. By the state court complaint, U.S. Bank “de-elare[d] the full amount due under [the] note and mortgage”.3 At that time, U.S. Bank filed a notice of lis pendens in the public records indicating that a foreclosure was pending against the property.4 The case proceeded to trial and the court dismissed the case without prejudice in 2013. U.S. Bank has not filed another foreclosure action against the debtor since the dismissal.

[836]*836Five years have passed since U.S. Bank accelerated the note and mortgage and filed the lis pendens. As such, the debtor argues, U.S. Bank is now barred from filing another foreclosure action on the note and mortgage; most importantly, he contends, the debt is unenforceable and, therefore, worthless.

The debtor puts forth two theories supporting his position5:

First, by accelerating the note and mortgage in 2009, U.S. Bank put all payments due at issue; the statute of limitations clock on this accelerated debt began ticking at that time. Five years have passed since acceleration, so U.S. Bank is now barred from bringing an action, on the accelerated debt.

Second,6 by filing a notice of lis pendens in the public records, U.S. Bank altered the record of the note and mortgage to reflect their acceleration. In effect, this made the date of acceleration the “date of maturity” for the purposes of the statute of repose. Five years have passed since acceleration, so the mortgage lien has now terminated.

U.S. Bank disagrees with the debtor’s positions, but insists that this dispute must be resolved through an adversary proceeding, rather than on an objection to claim or a motion in the main case. On the merits, U.S. Bank argues that the debtor’s theories have been adopted by only a minority of Florida courts, and that authorities from the Supreme Court of Florida and the federal courts foreclose the debtor’s arguments.

Discussion

The Objection must be overruled and the Motion denied because the relief that the debtor seeks is more appropriate for an adversary proceeding. But even if the Court is incorrect about that, the relief sought should be denied as a matter of law.

Objections to claims and motions to determine secured status are normally contested matters that may be resolved in the main case. Federal Rule of Bankruptcy Procedure 7001(2), however, requires that certain contested matters be brought as adversary proceedings, namely, “proceeding[s] to determine the validity, priority, or extent of a lien or other interest in property”.7

The debtor argues that the relief • he seeks here does not fall within Rule 7001(2) because he characterizes it as not determining the validity of the lien, but as-[837]*837determining the enforceability of the note. However the debtor attempts to repackage the relief sought, the substance bears on the validity and extent of the lien in question. This Court has acknowledged that such a challenge is appropriately brought in an adversary proceeding unless the parties agree otherwise.8 As such, the Objection must be overruled without prejudice and the Motion must be denied without prejudice.

But even if the Court were mistaken regarding the need for an adversary proceeding, the result would not change.

The Court would quickly dispose of the debtor’s second argument that the statute of repose has expired. The statute of repose expires five years from the maturity of the obligation as “ascertainable from the record of it”. The Us pendens stated merely that U.S. Bank was “seeking to foreclose a mortgage” on the property.9 Nothing on the face of the document says anything of acceleration or of the maturity date,10 and it would be too strained to argue otherwise.11 The Court, instead, looks to the face of the note and its maturity date of December 1, 2035.12 As such, the statute of repose does not expire for another 25 years.

The Court would also reject the debtor’s first argument. The debtor’s argument finds support in the recent decision Deutsche Bank Tr. Co. v. Beauvais. In that case, the Florida Third District Court of Appeal held that when a mortgagee accelerates a note and mortgage and initiates a foreclosure suit, the statute of limitations begins to run on the accelerated debt. When the foreclosure case is dismissed without prejudice, the court continued, the accelerated debt is not decelerated, and the statute of limitations continues to run on the accelerated debt unless otherwise decelerated. As such, under this theory, when five years pass, the statute of limitations precludes subsequent actions to collect the accelerated debt. As a corollary, the court noted, so long as the debt remains accelerated, no new payments are due, and no new payment defaults accrue; the mortgagee is, therefore, precluded from suing on a subsequent default.

The holding in Beauvais conflicts with several other cases from federal courts.13 These eases uniformly hold that when [838]*838mortgagees accelerate the note and mortgage and bring unsuccessful foreclosure actions, the clock on the statute of limitations does not begin running as to the entire mortgage (or later defaults), and all of these cases implicitly hold that a dismissal without prejudice does not affect this.14 And those cases that discuss the distinction between dismissals with and without prejudice reject the argument that it makes a difference.15

More importantly, Beauvais conflicts with the overriding equities stated by the Supreme Court of Florida in Singleton v. Greymar.16.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Deutsche Bank Trust Company Americas, Etc. v. Beauvais
188 So. 3d 938 (District Court of Appeal of Florida, 2016)
Christiana Trust v. Taveras
186 So. 3d 50 (District Court of Appeal of Florida, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
534 B.R. 834, 25 Fla. L. Weekly Fed. B 319, 2015 Bankr. LEXIS 2526, 2015 WL 4522971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-anthony-flmb-2015.