Zlinkoff v. Von Aldenbruck

765 So. 2d 840, 2000 Fla. App. LEXIS 10336, 2000 WL 1153988
CourtDistrict Court of Appeal of Florida
DecidedAugust 16, 2000
DocketNo. 4D00-0394
StatusPublished
Cited by5 cases

This text of 765 So. 2d 840 (Zlinkoff v. Von Aldenbruck) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zlinkoff v. Von Aldenbruck, 765 So. 2d 840, 2000 Fla. App. LEXIS 10336, 2000 WL 1153988 (Fla. Ct. App. 2000).

Opinion

PER CURIAM.

Appellant Norman Zlinkoff appeals the final judgment of foreclosure entered against him, arguing that under section 95.281, Florida Statutes (1999), the foreclosure action was untimely. We agree and reverse the trial court’s judgment.

In February 1987, Appellee Dennis G. Von Aldenbruck sold a condominium to Michael and Janice DeSantis and financed the transaction with a $70,000 promissory note and purchase money mortgage. The mortgage, which was recorded, reflected a maturity date of February 1992. An extension note with a maturity date of February 1993 was executed but not recorded. The maturity date was later orally extended by Von Aldenbruck and the DeSantises, who continued to make monthly payments through February 1996, bringing the account current through May 1995.

The DeSantises divorced and defaulted on the note and mortgage. They also owed money to the property owners’ association, which initiated foreclosure proceedings on the property. Appellant Norman Zlinkoff became interested in the property and searched the public records. He found the mortgage dated in 1987 with a final balloon date of 1992. He also found a supplemental judgment from the DeSantises divorce. The supplemental judgment, entered in 1995, required Michael DeSantis to transfer his interest in an unidentified condominium to Janice DeSantis, “subject to the outstanding mortgage” that she assumed. Zlinkoff also uncovered a warranty deed recorded on September 12, 1996, evidencing that Michael DeSantis had deeded the condominium in question to Janice DeSantis, without any reference to a mortgage. The deed reflected that $119 in documentary stamps were paid. Zlinkoff did not contact anyone associated with the condominium association, the DeSantises, or Von Aldenbruck prior to the sale to inquire about the status of the mortgage.

In October 1998, at the foreclosure sale, Zlinkoff paid approximately $11,000 for the condominium, which was listed on the tax rolls as $104,000. He obtained a certificate of title, which he recorded.

In November 1998, Von Aldenbruck, as owner and holder of the note and mortgage with the DeSantises, initiated a foreclosure action against Zlinkoff. Von Al-denbruck and Zlinkoff agreed that the full amount under the note and mortgage (over $68,000) plus interest was due. Zlinkoffs position, however, was that the time for suing on the mortgage had expired under section 95.281.

After a bench trial, the trial court concluded that because Zlinkoff knew of the DeSantises’ supplemental divorce judgment, which was recorded, he had implied actual notice of the mortgage and thus had a duty to further inquire into the status of the mortgage and any extension of its maturity date. Based on this conclusion, [842]*842the trial court determined Von Alden-bruck’s foreclosure action was not barred by section 95.281 and that Von Aldenbruck was entitled to final judgment against Zlin-koff. The final judgment awarded to Von Aldenbruck included the principal balance on the note and mortgage, accrued interest, various costs, and over $18,000 in attorney’s fees. The final judgment also included nearly $10,000 in property taxes from 1995, 1996, and 1997 that Von Alden-bruck had paid on the property.

On appeal, Zlinkoff argues that because the plain language of section 95.281 bars Von Aldenbruek’s foreclosure action as untimely, the trial court erred in finding that Von Aldenbruck was entitled to judgment. Section 95.281 provides, in pertinent part, as follows:

(1) The hen of a mortgage or other instrument encumbering real property, herein called mortgage ... shah terminate after the expiration of the following periods of time:
(a) If the final maturity of an obli- ■ gation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity.
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(2) If 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 recorded, 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 the final maturity of the obligation as extended.
(b) If the final maturity of the obligation, as extended, secured by the mortgage is not ascertainable from the record of the extension agreement, 20 years after the date of the extension agreement, unless prior to such time the holder of the mortgage:
1. Re-records the mortgage and includes a copy of the obligation, as extended, secured by the mortgage so that the final maturity is ascertainable; or
2. Records a copy of the obligation, as extended, secured by the mortgage from which copy the final maturity is ascertainable and by affidavit identifies the mortgage by its official recording data and certifies that the obligation is the obligation described in the mortgage; in which case the lien shall terminate 5 years after the date of maturity as extended.
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(4) The time shall be extended only as provided in this law and shall not be extended by any other agreement, non-residence, disability, part payment, operation of law, or any other method.

§ 95.281, Fla. Stat. (1999).

Here, the recorded mortgage reflected a final maturity date of February 1992. At that time, under section 95.281(1), the ability to foreclose on the mortgage terminated in February 1997, five years after the recorded date. A written agreement executed by Von Alden-bruck and the DeSantises and recorded would have extended that time by five to twenty years, depending upon whether the final maturity date, as extended, was ascertainable from the record. See § 95.281(2). While Von Aldenbruck and the DeSantises executed one written agreement extending the maturity date of the mortgage, and while other extension agreements were orally made, an extension agreement was not recorded. Section 95.281(4) specifically states that anything other than a recorded agreement executed between the mortgagor and mortgagee (or their successors-in-interest) will not extend the time for pursuing a foreclosure action. See also § 95.281(2). Because the final maturity date of the mortgage was not made according to the provisions of section 95.281(2), the time to foreclose the mortgage terminated in February 1997. See § 95.281(1), (4). Thus, when Zlinkoff pur[843]*843chased the property in a clerk’s foreclosure sale in October 1998, he did not take subject to the mortgage because under the terms of section 95.281, the time for Von Aldenbruck to foreclose on the mortgage had expired. By waiting until November 1998 and not validly extending the time to file a foreclosure action, Von Aldenbruck untimely initiated foreclosure proceedings.

Von Aldenbruck argues that the recorded supplemental judgment of divorce created a duty for Zlinkoff to investigate further into the status of the mortgage. He also argues that the Legislature intended to allow parties to privately extend the time for foreclosing on a mortgage without complying with the precise terms of section 95.281(4). We reject these arguments.

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Bluebook (online)
765 So. 2d 840, 2000 Fla. App. LEXIS 10336, 2000 WL 1153988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zlinkoff-v-von-aldenbruck-fladistctapp-2000.