14 1265 Int Brief Merits(Patricia Bartram) 110514

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Filing # 20257487 Electronically Filed 11/05/2014 11:49:03 PM
RECEIVED, 11/5/2014 23:53:50, John A. Tomasino, Clerk, Supreme Court

Case Nos. SC14-1265, SC14-1266 & SC14-1305
Lower Tribunal Case No. 5D12-3823
To be argued by:
Paul Alexander Bravo
__________________________________________________________________

In the Supreme Court of Florida
______________________
Lewis Bartram, Patricia Bartram & The Plantation at Ponte Vedra, Inc.,
Petitioners,
v.
U.S. Bank, N.A.,
Respondent.
_________________________________________________________________
On Appeal from the Fifth District Court of Appeals

Patricia Bartram’s Initial Brief
__________________________________________________________________
Paul Alexander Bravo
Florida Bar No. 38275
pabravo@pabravo.com

Jason Bravo
Florida Bar No. 17525
jbravo@pabravo.com

P.A. BRAVO
17 Sevilla Ave
Coral Gables, FL 33134
305.209.9019
service@pabravo.com

www.pabravo.com

TABLE OF CONTENTS
Table of Contents

Table of Citations

Table of Authorities

vii

Point on Appeal

(1) Can the successful acceleration of all future installment
payments due under a promissory note and mortgage be
reversed so that the loan is reinstated without the consent
of (or even explicit notice to) the borrower in order to
avoid the absolute bar to recovery of a money judgment
on the note and foreclosure of the mortgage provided by
the statutes of limitations in section 95.11(2)(b) and
section 95.11(2)(c) of the Florida Statutes?;
and,
(2) Once the five year statute of limitations in § 95.11(2)(b)
and § 95.11(2)(c) have expired on an accelerated
promissory note and mortgage, is the mortgage a valid
encumbrance under Florida law (Or does it become a
legal nullity subject to judicial cancellation as a cloud on
title upon adjudication that the statutes of limitations have
expired)?
Introduction

Statement of the Issues

Procedural History

Standard of Review

Summary of the Argument

www.pabravo.com

Argument on Appeal
I.

II.

U.S. Bank’s mortgage is barred by the plain language of section
95.11(2)(c), which was enacted with the specific intent that
equitable principles no longer affect the timeliness of foreclosure
claims, and every court interpreting the provision prior to the
lower court here found that the statute begins to run upon
acceleration.

A. Prior to January 1, 1975, Florida law provided that mortgages
could be foreclosed in equity for 20 years after maturity
regardless of whether the promissory notes they secured were
barred by the shorter 5 year statute of limitations applicable to
written contracts.

B. The 1974 amendments to Chapter 95 were intended in part to
change Florida law so that mortgages would become
unenforceable at the same time as their related promissory notes
– 5 years after “accrual” of the causes of action on each.

C. Prior to the lower court’s decision here, every Florida court that
interpreted Chapter 95 after the 1974 amendments correctly
found that acceleration matures the mortgage and begins the
running of the statute of limitations against enforcement of the
entire mortgage debt.

This Court’s limited holding and opinion in Singleton was not
intended to be applied to a statute of limitations analysis as this
Court has consistently recognized that statute of limitations are
to be applied in accordance with legislative intent and Singleton
did not mention or address any statute.

A. This Court’s limited holding in Singleton was based on the facts
before the Court and on well-settled principles that are specific
to the application of the defense of res judicata and inapplicable
to the defense of statute of limitations.

B. Reading the plain language of the relevant provisions of Chapter
95 together with one another in light of the history of the statute,

___

and resolving any ambiguities in favor of an interpretation that
effectuates its purpose, precludes the application of Singleton’s
reasoning in this case.
III.

Once enforcement of a mortgage is barred by the statute of
limitations is ceases to have any legal effect and the owner of the
real estate encumbered by the mortgage is entitled to have a
Florida court exercise its statutory authority under the
Declaratory Judgment Acts and its equitable powers to enter a
judgment declaring the mortgage to be unenforceable and
striking it from the record as a void cloud on title.

Conclusion

Certificate of Service

Certificate of Compliance with Font Requirement

Appendix

___

iii

TABLE OF CITATIONS
Cases
Bank of Wildwood v. Kerl, 189 So. 866 (Fla. 1939)

Baskerville-Donovan Eng’rs, Inc. v. Pensacola Executive House
Condo. Ass’n, Inc., 581 So. 2d 1301 (Fla. 1991)

Bennett v. Herring, 1 Fla. 387 (1847)

Brown v. Griffin, 229 So. 2d 225 (Fla. 1969)

15, 47

Browne v. Browne, 17 Fla. 607 (1880)

23, 24

Caduceus Props., LLC v. Graney, 127 So. 3d 987 (Fla. 2014)

Carey v. Beyer, 75 So. 2d 217 (Fla. 1954)

Cent. Home Trust Co. v. Lippincott, 392 So. 2d 931 (Fla. 5th DCA
1980)

Chandler v. Chandler, 226 So. 2d 697 (Fla 4th DCA 1969)

City of Miami v. Romfh, 63 So. 440 (Fla. 1913)

Commercial Credit Co. v. Parker, 132 So. 640 (Fla. 1931)

Connor. v. Coggins, 349 So. 2d 780 (Fla 1st DCA 1977)

Craig v. Ocean & Lake Realty Co., 133 So. 569 (Fla. 1931)

Davis v. Combination Awning & Shutter Co., 62 So. 2d 742 (Fla.
1953)

Dobbs v. Sea Isle Hotel, 56 So. 2d 341 (Fla. 1952)

Driver v. Van Cott, 257 So. 2d 541 (Fla. 1971)

___

Ellis v. Fairbanks, 21 So. 107, 109 (Fla. 1897)

13, 25

Employers Fire Ins. Co. v. Continental Ins. Co., 236 So. 2d 177
(Fla. 1976)
Erickson v. Ins. Co. of N. America, 63 So. 716 (Fla. 1913)

Fed. Nat’l Mortgage Ass’n v. Mebane, 208 AD 2d 892, 894 (App.
Div. 2nd Dep’t 1994)
Florida Sugar Distribs. v. Wood, 184 So. 641 (Fla. 1938)

Garden v. Frier, 602 So. 2d 1273 (Fla. 1992)

Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004)

Gillespie v. Florida Mortgage & Inv. Co., 117 So. 708 (Fla. 1928)

Gordon v. Gordon, 59 So. 2d 40 (Fla. 1952)

Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999)

H.K.L. Realty Corp. v. Kirtley, 74 So. 2d 876 (Fla. 1954)

Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000)

20, 33

Holmes County Sch. Bd., v. Duffell, 651 So. 2d 1176 (Fla. 1995)

Holy Cross Church of God in Christ v. Wolf, 44 S.W. 3d 562 (2001)

Houck Corp. v New River, Ltd., Pasco, 900 So. 2d 601 (Fla. 2d
DCA 2005)

17, 30,
49

Hubbard v. Tebbetts, 76 So. 2d 280 (Fla. 1954)

Jaudon v. Equitable Life Assur. Soc. Of United States, 136 So. 517
(Fla. 1931)
Jordan v. Sayre, 3 So. 329 (Fla. 1888)

Kippy Corp v. Colburn, 177 So. 2d 193 (Fla. 1965)

___

Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004 (1929)

Laksy v. State Farm Ins. Co., 296 So. 2d 9 (Fla. 1974)

Lanigan v. Lanigan, 78 So. 2d 92 (Fla. 1955)

Layton v. Bay Lake Ltd. P’ship, 818 So. 2d 552 (Fla. 2d DCA 2002)

Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001)

18, 20

McDonald v. Roland, 65 So. 2d 12 (Fla. 1953)

Monte v. Tipton, 612 So. 2d 714 (Fla. 2d DCA 1993)

Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976)

38, 49

Ponder v. Graham, 4 Fla. 23 (1851)

Putzer v. Homeridge Props., 57 So. 2d 848 (Fla. 1952)

Raymond James Fin. Servs., Inc. v. Phillips, 126 So. 3d 186 (Fla.
2013)

13, 14,
39

Realty Bond & Share Co. v. Englar, 143 So. 152 (Fla. 1932)

Richards v. Maryland Ins. Co., 12 U.S. 84 (1814)

Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386 (1869)

Second Nat’l Bank of N. Miami v. G.M.T. Props., Inc., 364 So. 2d
59 (Fla. 3d DCA 1978)

Seligman v. Bisz, 167 So. 38 (Fla. 1936)

Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004)

___

4, 12,
18, 19,
30, 31,
32, 40,
41

Spencer v. EMC Mortgage Corp., 97 So. 3d 257 (Fla. 3d DCA
2012)

17, 29

Spencer v. McBride, 14 Fla. 403 (1874)

19, 47

Stadler v. Cherry Hill Developers, Inc., 150 So. 2d 468 (Fla. 2d
DCA 1963)

T. & C. Corp. v. Eikenberry, 178 So. 137 (Fla. 1938)

Travis Co. v. Mayes, 36 So. 2d 264 (Fla. 1948)

16, 19,
42
12, 18,
19, 33
33

U.S. Bank, N.A. v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014)
Universal Const. Co. v. City of Fort Lauderdale, 68 So. 2d 366
(Fla. 1953)
USX Corp v. Schilbe, 535 So. 2d 719 (Fla. 2d DCA 1989)

17, 29

Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303 (2006)

WRH Mortgage, Inc. v. Butler, 684 So. 2d 325 (Fla. 5th DCA 1996)

Statutes
§ 95.11(2)(b), Fla Stat. (2014)

Throughout

§ 95.11(2)(c), Fla Stat. (2014)

Throughout

§ 95.051, Fla. Stat. (2014)

Throughout

§ 95.281, Fla. Stat. (2014)

Throughout

§ 86.011, Fla. Stat. (2014)

Throughout

Ch. 21280, Laws of Fla. (1943)

Ch. 22560, Laws of Fla. (1945)

14
___

vii

Other Authorities
Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale
L. J. 333 (1933)

Benjamin Franklin, The Way to Wealth (1758)

Oliver Wendall Holmes, The Path of the Law

___

viii

STATEMENT OF THE CASE AND FACTS
I.

Introduction

This is a case of first impression that turns on the timeliness of a claim by a
creditor holding a defaulted mortgage to foreclose out the timely filed claims of two
secured creditors and the title interest of an owner of residential real estate in Florida.
Resolution of the certified questions in this case will require the Court for the first
time to opine on the interplay between the exercise of a contractual acceleration
clause and the concepts of “accrual” and “tolling” as those words are used in Chapter
95 of the Florida Statutes. The Court will also be required to determine for the first
time the effect of the Florida Legislature’s shortening of the statute of limitations for
mortgage foreclosures from 20 years to 5 years, and its inclusion of a provision in
the statute providing that all equitable remedies in Florida are barred in any case
where the corollary legal remedy is barred, both of which it did in 1974 when it
enacted a set of sweeping amendments to Chapter 95.
The Court’s task is not an enviable one. Many of the legal principles involved
are ancient. Some can even be characterized as antiquated, if not anachronistic. The
issues are further convoluted by the relative equities inherent in disputes between
borrowers and creditors, and the often seemingly contradictory rules that courts have
applied from time to time to arrive at just results in particular cases. But the decision
is necessary. It will bring much needed certainty to the law of real estate, negotiable

instruments, and secured lending. And it will clarify the relationship between
statutory and judicial bars to prosecution of otherwise potentially meritorious claims.
Finally, the decision will likely be determinative of hundreds, if not thousands, of
ongoing disputes between lienholders and owners of Florida real estate, most of
which are currently pending before the state courts of Florida.
Despite the seeming complexities involved, the Court’s decision will
ultimately turn on its interpretation of just two statutory provisions. The first is
section 95.11(2)(c), which was enacted in 1974 and states plainly and simply that
“[a]n action to foreclose a mortgage” must be commenced within 5 years. The
second provision is found in section 95.2811 and states that the “lien of a mortgage
or other instrument encumbering real property . . . shall terminate after the expiration
of the following periods of time ….” It then defines the periods of time as 5 years
“[i]f the final maturity of an obligation secured by a mortgage is ascertainable from
the record of it” and 20 years “[i]f the lien of the mortgage is not ascertainable from
the record of it.”
The provisions are seemingly at odds. On the one hand, the law appears to be
that the holder of a mortgage has 5 years to bring a foreclosure claim after it accrues.

The provision was substantially revised and renumbered as part of the 1974
amendments but was originally enacted in 1945 and previously found in section
95.28.
___

On the other, the time periods referred to in section 95.281 turn on the recording date
of the mortgage, and the maturity date (if any) appearing on its face, not on the date
a foreclosure claim may have accrued. Several lower appellate courts have had the
opportunity to consider the relationship between the two provisions, and these courts
seem to be in agreement that one is a “statute of limitations” and that the other is
better understood as a “statute of repose.” But none of the opinions to date have fully
explained how each is to be properly applied to a particular set of facts in light of
the other.
As argued in this brief, the Court’s resolution of this case necessarily requires
that it fill this void in the law by reading each provision together in light of the law
as it existed in 1974 – the year 95.11(2)(c) was enacted and 95.281 was substantially
revised and renumbered. As the venerable Oliver Wendell Holmes, Jr. observed over
a hundred years ago: “The rational study of law is still to a large extent the study of
history.”2 A careful analysis of the history behind these provisions not only indicates
that they were intended to complement one another in pursuit of the same legislative
goals, but it also suggests that the most coherent and just outcome in this case was
initially arrived at by the trial court when it cancelled U.S. Bank’s mortgage.

OLIVER W. HOLMES, THE PATH OF THE LAW 20 (Applewood Books) (1897).
___

II.

Statement of the Issues

The Fifth District Court of Appeals relied on this Court’s decision in
Singleton v. Greymar, 882 So. 2d 1004 (Fla. 2004), to reverse the trial court’s entry
of a declaratory judgment finding enforcement of the mortgage held by U.S. Bank
to be barred by the statute of limitations and striking it from the public record. After
doing so, the lower court certified the following question to this Court:
Does acceleration of payments due under a note and mortgage in a
foreclosure action that was dismissed pursuant to rule 1.420(b), Florida
Rules of Civil Procedure, trigger application of the statute of limitations
to prevent a subsequent foreclosure action by the mortgagee based on
all payment defaults occurring subsequent to dismissal of the first
foreclosure suit?
There are two primary problems with this particular characterization of the
novel issues involved in this case. First, the question begs its own answer because it
explicitly assumes that there can in fact be “payment defaults” after the acceleration
of all future payments due under a note and mortgage. Second, the answer to the
question, however phrased, only resolves one of the issues necessary to decide this
case – whether or not the dismissal of an action to foreclose an accelerated mortgage
can serve as the basis for avoiding the statute of limitations in a subsequent suit. In
other words, the question asks only if a mortgage that’s been accelerated for more
than 5 years can still be foreclosed if it was accelerated as part of a failed foreclosure
attempt. But the Court needs to go a step further to fully resolve this case. Because
___

the declaratory judgment in this case found the mortgage to be unenforceable and
struck it from the public record, the Court also must determine if a mortgage that is
barred by the statute of limitations can survive as a valid encumbrance under Florida
law; and, if not, whether a trial court has the authority to enter a declaratory judgment
cancelling the mortgage as a matter of record after finding that the statute of
limitations has expired.
As a result, Petitioner, Patricia Bartram, respectfully submits that answers to
the following two questions are necessary in order to fully resolve this case:
(1) Can the successful acceleration of all future installment payments
due under a promissory note and mortgage be reversed so that the
loan is reinstated without the consent of (or even explicit notice to)
the borrower in order to avoid the absolute bar to recovery of a
money judgment on the note and foreclosure of the mortgage
provided by the statutes of limitations in section 95.11(2)(b) and
section 95.11(2)(c) of the Florida Statutes?;
and,
(2) Once the five year statute of limitations in § 95.11(2)(b) and §
95.11(2)(c) have expired on an accelerated promissory note and
mortgage, is the mortgage a valid encumbrance under Florida law
(Or does it become a legal nullity subject to judicial cancellation as
a cloud on title upon adjudication that the statutes of limitations
have expired)?
The answer to both of these questions is flatly no. The law in Florida since
January 1, 1975 (the day the 1974 amendments to Chapter 95 went into effect) has
been that once the remedy for breach of a promissory note is barred at law, the
___

corresponding remedy on a mortgage securing its repayment is similarly barred.
Additionally, in 1974, when Chapter 95 was completely overhauled by the Florida
legislature,3 the law had long been settled that the exercise of an optional
acceleration clause would “accelerate the maturity of the debt” and that “the
institution of a suit for foreclosure is the exercise of the option of the mortgagee to
declare the whole of the principal sum and interest secured by the mortgage due and
payable.”4 And not a single appellate decision existed in the state of Florida holding
that acceleration could be reversed under any circumstances, much less in order to
avoid the absolute bar of a statute of limitations. As a result, the legislature could
not possibly have anticipated that section 95.11(2)(c) would be applied in a way that
allows a claimant to extend or otherwise avoid the statute of limitations by allowing
an accrued claim for foreclosure to be dismissed.
Since the enactment of the 1974 amendments, every decision of this Court has
approached a question regarding its application in the same way – by seeking to
interpret it in accordance with legislative intent. And in doing so, the Court has

See A114, CS/HB 895 Section Summary (“Section 7 Limitations other than for the
recovery of real property. – This section is the heart of the bill. It contains all the
time periods for limitations other than for the recovery of real property.”). Add. 2 at
Pg. 4.
4
Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 1013-1015 (1929)
(emphasis added).
3

___

consistently found that once a cause of action accrues, the only way the “clock”
started at the moment of accrual can be stopped, is by showing the existence of one
of the reasons in the exclusive list set forth in section 95.051. That provision, which
was also enacted as part of the 1974 amendments, explicitly states that “[a] disability
or other reason does not toll the running of any statute of limitations except those
specified in this section ….”5 Because the exhaustive list in 95.051 does not include
dismissal of a claim, or the occurrence of any event in the sole control of the plaintiff,
the first question can safely be answered in the negative.
The answer to the second question also requires the Court to consider
legislative intent in light of the law as it existed in 1974. And as is the case with the
first question, long-standing and well-settled precedent from this Court provides the
answer: once the remedy of mortgage foreclosure is barred, the lien ceases to exist
as a matter of law and the mortgage holder has no claim against (or any right to) the
property. This conclusion follows from the simple fact that this Court has interpreted
Florida law to follow the lien theory of mortgages, which simply means that a
mortgage is merely a type of personal property (sometimes described as a “chose in
action”) providing the right to have the real estate security auctioned off in
satisfaction of the underlying debt once the mortgage is adjudicated to be

§ 95.051(2), Fla. Stat. (2014)
___

enforceable by a Florida court. So once a claim for foreclosure of an accelerated
mortgage has been found to be barred by the statutes of limitations, the mortgage
(which is merely a right to a judicially sanctioned foreclosure sale) can no longer be
said to exist and serves no legal purpose whatsoever.
Section 95.281 does not change the analysis because that provision only
provides an outside date beyond which a mortgage can be considered unenforceable
as a matter of public record. The purpose of the provision, which was enacted almost
20 years before the legislature enacted the Marketable Record Titles to Real Property
Act (“MRTA”), was simply to provide certainty in real estate transactions by
extinguishing stale or abandoned liens by operation of law without the necessity for
multiple lawsuits to quiet title. Although the passage of MRTA, which extinguishes
all claims to real estate recorded more than 30 years before root title, arguably made
95.281 superfluous in many cases, the legislature made a conscious decision in 1974
to retain the provision in Chapter 95. But it only did so after shortening the period
after maturity that a mortgage survives under 95.281 from 20 years to 5 years to
align it with the 5 year statute of limitations added to 95.11. This indicates that the
legislature intended that the two provisions work together towards the same purposes
of eliminating stale claims to real estate, encouraging diligent enforcement of
defaulted mortgages, and ensuring certainty in real estate transactions.
___

III.

Procedural History
A.

U.S. Bank’s Failed Foreclosure

The mortgage at issue in this case went into default on January 1, 2006. 6 On
May 16, 2006, Respondent, U.S. Bank, filed a complaint in St. John’s County,
Florida, in which it explicitly stated that it was exercising its option to accelerate the
due date of all future payments otherwise due under the note and mortgage so that
they were all immediately due and payable. (A1 at ¶ 9). On December 12, 2006,
Lewis Bartram filed an answer to the complaint, and on December 19, 2006, U.S.
Bank moved for final summary judgment of foreclosure of its mortgage. (A37).
Although the motion does not appear to have been denied, over two years later, on
February 23, 2009, U.S. Bank filed a renewed motion for summary judgment. (A46).
After the renewed motion was denied on March 24, 2009, (A56) U.S. Bank filed a
third motion for summary judgment on February 2, 2010, nearly four years after it
filed the complaint. (A57). The third summary judgment motion would never be
heard. On May 5, 2011, nearly 5 years to the day after the case was filed, the trial

As of the filing of this brief, more than 8 years after Lewis Bartram’s initial
default, no payments have been made on the mortgage.
6

___

court dismissed the case without prejudice as a result of U.S. Bank’s failure to appear
at a noticed status conference.7 U.S. Bank did not appeal the dismissal.
B.

The Pending Lien Foreclosures

On January 11, 2011, more than 5 years after U.S. Bank’s mortgage went into
default, Petitioner, The Plantation at Ponte Vedra Homeowners’ Association (the
“Association”), filed a complaint seeking to foreclose its claim of lien for
homeowners’ assessments and other charges.8 Then, on April 1, 2011, Patricia
Bartram, initiated a separate action by filing a complaint seeking to foreclose a
mortgage she received from Lewis Bartram in connection with their divorce
proceedings.9 According to her complaint, Lewis Bartram defaulted when he failed
to satisfy the mortgage by paying the balance of $156,954.64 in full by August 31,

See A73. Because the dismissal order does not state if it is with or without
prejudice, it is presumed to be without prejudice. See Fla. R. Civ. P. 1.420.
8
The Association has not received any payments since the U.S. Bank Mortgage
went into default. See A74. The amount owed to the Association now exceeds
$200,000.00.
9
See A75. The mortgage received by Patricia Bartram was given as security for
her equity in the former marital home. See A88 at ¶ 4. Patricia Bartram never
received payment from Lewis Bartram on the mortgage and did not obtain any
benefit from it until it was purchased from her by the current owner, Gideon
Gratsiani, after the lower court issued its opinion. Gratsiani filed a motion to
substitute party with the Fifth District Court of Appeals, which was denied without
opinion. Although Gratsiani is the current holder of the mortgage, the petition is
being prosecuted in the name of Patricia Bartram (with her express consent) in
accordance with rule 1.260(c) of the Florida Rules of Civil Procedure.
___

2006, in accordance with the final judgment dissolving the marriage. (A76 at ¶ 6-7).
On February 4, 2012, Patricia Bartram’s foreclosure action was transferred to the
same judicial division where the Association’s foreclosure was pending, which is
the same court that had dismissed U.S. Bank’s foreclosure. On April 26, 2012, Lewis
Bartram filed a cross-claim against U.S. Bank in Patricia Bartram’s foreclosure
action seeking a declaratory judgment finding U.S. Bank’s mortgage to be
unenforceable under the statute of limitations found in section 95.11(2)(c) and
cancelling it as an illegitimate cloud on title. On July 31, 2012, the trial court entered
final summary judgment in Lewis Bartram’s favor on his cross claim. On September
12, 2012, after the trial court denied U.S. Bank’s motion for rehearing, U.S. Bank
appealed the entry of final judgment to the Fifth District Court of Appeals.10
C.

The Fifth District’s Decision

On April 25, 2014, the Fifth District Court of Appeals issued its opinion and
mandate. The court reversed the entry of final judgment after concluding “that a
foreclosure action for default in payments occurring after the order of dismissal in
the first foreclosure action is not barred by the statute of limitations found in section

Since this appeal was filed, the Association has obtained a final judgment on
count II of its complaint for money damages. The March 4, 2013 judgment
liquidated damages for assessments in the principal amount of $134,008.81 but did
not determine attorneys’ fees or foreclose the Association’s lien.
___

95.11(2)(c), Florida Statutes, provided the subsequent foreclosure action on the
subsequent defaults is brought within the limitations period.”11 The court based its
decision on its interpretation of this Court’s opinion in Singleton, where this Court
approved a Fourth District Court of Appeals decision ruling that a foreclosure action
that had been refiled after dismissal of a prior action to foreclose the mortgage with
prejudice but less than 2 years after the defendant’s initial default was not barred by
res judicata. In its opinion, the Bartram court explicitly stated “that there is no
question of the Bank’s successful acceleration of the entire indebtedness on May 15,
2006.” But it found that “[b]ased on Singleton, a default occurring after a failed
foreclosure attempt creates a new cause of action for statute of limitations purposes,
even where acceleration had been triggered and the first case was dismissed on its
merits.”12 Based on this reasoning, the court reversed the trial court’s entry of
summary judgment, certified the question set forth in section I above, and remanded
the case. All of the parties adversely affected by the lower court’s decision timely
invoked this Court’s jurisdiction, and on September 11, 2014, the Court entered an
order accepting jurisdiction and setting a briefing schedule.

U.S. Bank, N.A., v. Bartram, 140 So. 3d 1007, 1014 (Fla. 5th DCA 2014).
See id. Although the sole footnote in the opinion seems to indicate that the
dismissal of U.S. Bank’s foreclosure was with prejudice, as explained in footnote 7
above, the dismissal was actually without prejudice.
12

___

IV.

Standard of Review

The applicable standard of review is de novo.13
SUMMARY OF THE ARGUMENT
The lower court’s decision is based on a misapplication of the law as it has
existed since January 1, 1975, and on an apparent misapprehension of this Court’s
decision in Singleton. The lower court arrived at its decision without considering the
legislature’s intent when it enacted section 95.11(2)(c) as part of the extensive
changes it made to Chapter 95 in 1974. As of that year, this Court had determined
over 100 years before that even though a promissory note was barred by the 5 year
statute of limitations on written contracts the corresponding mortgage could be
foreclosed in equity for a period of 20 years after accrual of the causes of action.14
In 1945 the legislature recognized this result when it enacted section 95.28 (the

See, e.g., Raymond James Fin. Servs., Inc. v. Philips, 126 So. 3d 186, 190 (Fla.
2013) (applying a de novo standard of review in a case turning on the Court’s
construction of section 95.011, which was enacted as part of the 1974 amendments
to Chapter 95).
14
This result was based on this Court’s conclusion that the statute of limitations for
instruments under seal was applicable to mortgage. See, e.g., Ellis v. Fairbanks, 21
So. 107, 109 (Fla. 1897) (finding that it had been “settled beyond any doubt or
cavil in [Florida] that the fact that the remedy at law is barred by the statute of
limitations upon promissory notes secured by a mortgage under seal does not affect
the lien of the mortgage.”). Importantly, the limitations period in that provision
was based on accrual of a cause of action on a written instrument under seal,
unlike section 95.281 (formerly 95.28), which has always been based on the date
of recording.
___

precursor to 95.281), which was intended to extinguish mortgages from the public
record by operation of law after 20 years from the maturity date of the mortgage and
20 years from recording of the mortgage if no maturity date was provided.15
But by 1974 the legislature had experienced an apparent “change of heart,”
which is expressed through its enactment of section 95.11(2)(c) and revisions to
section 95.28 (which it moved to 95.281).16 The nature of the changes, and the
available legislative history,17 indicate that they were intended to overrule the prior
result of this Court’s decisions by harmonizing the limitations periods applicable to
promissory notes and mortgages (both with respect to accrual and by reference to

See Chapter 22560, Laws of Fla. (1945); see generally, H.K.L. Realty Corp. v.
Kirtley, 74 So. 2d 876, 877 (Fla. 1954) (comparing the statute as amended in 1945
to its prior version).
16
In Philips, 126 So. 3d at 192, the Court noted that “examining the history of the
legislation is a helpful tool in determining legislative intent.” And, in fact, the
Court has recognized the usefulness and validity of this approach for many years.
See, e.g., McDonald v. Roland, 65 So. 2d 12, 14 (Fla. 1953) (discussing rules of
statutory construction and stated that “[i] is equally settled, however, that courts
will consider, among other things, the history of the enactment of a statute in aid of
determining the legislature’s intent.”).
17
See, e.g., A114, Florida Law Revision Council, Project on Statutes of Limitation,
Some Policy Considerations, (April 8, 1972) (“A logical application of limitations
policy suggests that the statute should extinguish the right of action as well as it
(sic) remedy. Not to do so encourages self help after the statute has run which in
turn threatens the security and stability of human affairs.”).
___

the public record),18 and by enacting 95.11(6), which explicitly made the limitations
periods in section 95.11 applicable to equitable causes of action by providing that
laches bars any relief “concerning the same subject matter.” With the enactment of
these amendments, every provision of the Florida Statutes affecting both the
timeliness and enforceability of mortgages had been changed to reduce the time of
enforceability after maturity from 20 years to 5 years.19
It did not take long after the 1974 amendments for its effects to be felt. Prior
to enactment of the 1974 amendments, there was a surprising dearth of case law
since the Court’s late nineteenth century decisions finding the 20 year statute of
limitations on instruments under seal to be applicable to mortgages.20 But just two

See, e.g., Brown v. Griffin, 229 So. 2d 225, 228 (Fla. 1969) (explaining that “[i]n
arriving at the legislative intent in amending the statute under consideration it is
appropriate to consider the prior judicial construction of the statute which was
amended as well as the practical operation of that statute before and after the
amendment.”).
19
The 1974 amendments also removed any reference to a contracts or “liability
founded upon an instrument of writing under seal” from section 95.11(1), which
this Court had formerly relied on as a basis for allowing a mortgage to be enforced
for 20 years. See 1974 Supplement to 1973 stat.
20
This Court in particular appears to have only decided three cases during that
period where the statute of limitations applicable to mortgages was involved. In
Travis Co. v. Mayes, 36 So. 2d 264 (Fla. 1948), the Court affirmed a judgment
denying a foreclosure brought 17 years after the mortgage’s maturity date based on
laches but did not decide the issue of whether the mortgage had been accelerated
so that it would also have been barred by the former version of section95.281. In
H.K.L. Realty Corp. v. Kirtley, 74 So. 2d 876 (Fla. 1954), the Court applied the
former version of 95.281 to reverse a judgment of foreclosure in a case filed more
18

___

years after the amendments became effective, the first Florida court to interpret the
new shorter statute of limitations handed down an opinion. In Conner v. Coggins,
349 So. 2d 780 (Fla. 1st DCA 1977), the First District Court of Appeals considered
sections 95.11(2)(c) and 95.281 together but determined that even though the
mortgage at issue had been in default for more than five years, because it did not
contain an acceleration clause it “did not fully mature until there was a default in
payment of the final installment.”21 Over the next 35 years, the second,22 third,23
fourth,24 and fifth25 districts also had the opportunity to interpret section 95.11(2)(c),
and each of those courts interpreted the provision the same way – it only bars
installments not coming due within 5 years unless the mortgage holder elects to

than 20 years after maturity. And in Hubbard v. Tebbetts, 76 So. 2d 280, 281 (Fla.
1954), the Court reversed the entry of a declaratory judgment finding a mortgage
time-barred and declaring it a void cloud on title after finding that the plaintiff
failed to plead the non-satisfaction of a condition precedent but otherwise agreed
that “the result reached below was correct.” In Putzer v. Homeridge Props., 57 So.
2d 848 (Fla. 1952), the Court did find a mortgage to be unenforceable, but that was
in the context of a quiet title action brought by the holder of a tax deed.
21

See Conner, 349 So. 2d at 782.
See USX Corp. v. Schilbe, 535 So. 2d 719 (Fla. 2d DCA 1989); Monte v. Tipton,
612 So. 2d 714 (Fla. 2d DCA 1993); Layton v. Bay Lake Ltd. P’ship, 818 So. 2d
552 (Fla. 2d DCA 2002); Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601
(Fla. 2d DCA 2005).
23
See Spencer v. EMC Mortg. Corp., 97 So. 3d 257 (Fla. 3d DCA 2012).
24
See Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999).
25
WRH Mortgage, Inc. v. Butler, 684 So. 2d 325 (Fla. 5th DCA 1996).
22

___

accelerate future installment payments, in which case the entire claim is barred. In
fact, it wasn’t until the lower court here relied on portions of this Court’s Singleton
opinion that a Florida court ever found that 95.11(2)(c) does not apply even when
the mortgage holder indisputably accelerated the full mortgage debt.26
The lower court’s misguided opinion resulted from its failure to consider the
limited nature of the Singleton holding and the fundamental differences between the
doctrine of res judicata and the statute of limitations, including in particular the fact
that one is judicially created while the other is legislatively enacted.27 The Singleton
decision was explicitly limited to the defense of res judicata and its holding was
narrow – the Court simply ruled that “[w]e approve the decision in Singleton and
hold that a dismissal with prejudice in a mortgage foreclosure action does not
necessarily bar a subsequent foreclosure action on the same mortgage.”28 The
decision was based on the equitable nature of foreclosure proceedings and the

See Bartram, 140 So. 3d at 1009 (noting that “there is no question of the Bank's
successful acceleration of the entire indebtedness on May 15, 2006.”) (Emphasis
added).
27
See, e.g., Major League Baseball v. Morsani, 790 So. 2d 1071, 1075 (Fla. 2001).
(explaining that “fixed limitations on actions are predicated on public policy and
are a product of modern legislative, rather than judicial, processes).
28
Singleton, 882 So.2d at 1005. (Emphasis added). The lower court itself described
the Court’s holding in Singleton parenthetically as “holding that dismissal with
prejudice in a mortgage foreclosure action does not necessarily bar, on res judicata
grounds, a subsequent foreclosure action on the same mortgage even if the
mortgagee accelerated the note in the first suit.” See Bartram, 140 So. 3d at 1010.
26

___

uncontroversial and well-settled rule that res judicata should not be applied
inflexibly where it would cause an injustice.29 But nothing in the opinion suggests
that the Court’s discussion in dicta of the relationship between acceleration and a
cause of action for foreclosure should be extended beyond the confines of the
doctrine of res judicata and the particular facts before the Court.30
By failing to consider the differences between the defenses of res judicata and
the statutes of limitations, the lower court failed to inspect the language of the statute
and did not conduct an analysis of legislative intent. 31 Once this Court takes those
differences into consideration and examines the language and history of the statute,
it will conclude that: (1) the legislature could not have intended that the Singleton
reasoning be applied to 95.11(2)(c) as it is presumed to know the law when it enacts
a statute and no cases applying anything like Singleton’s reasoning existed in1974,32
(2) a claim for foreclosure of a mortgage payable in installments accrues at the latest

See id. at 1008.
Where a second foreclosure action was brought within two years of the initial
default and the first foreclosure was dismissed for failure to appear at a status
conference as opposed to on the merits of the claim.
31
Instead, the court simply stated that “that Singleton’s analysis is equally
applicable to the statute of limitations issue.” See Bartram, 140 So. 2d at 1013.
32
See, e.g., Holmes County School Bd., v. Duffell, 651 So. 2d 1176, 1179 (Fla.
1995) (noting that “[t]he legislature is presumed to know existing law when it
enacts a statute.”).
30

___

at the time of acceleration;33 (3) once the statute of limitations begins to run on the
entire debt, the only way the statute won’t bar any action on mortgage is a finding
that one of the conditions in 95.051 occurred;34 (4) the equitable principles
supporting the result in Singleton are not relevant to this case because the intent of
the 1974 amendments was to simultaneously bar equitable and legal remedies on the
same subject matter and because statutes of limitations have always been applied
without regard to particular equities;35 and (5) the equities in this case do not favor
U.S. Bank anyhow (or any party that has not timely enforced an accrued right at the
expense of others that have).36

See, e.g., Mayes, 36 So. 2d at 265 (noting that “[t]he rule is also settled that
when a mortgage in terms declares the entire indebtedness due upon default of
certain of its provisions or within a reasonable time thereafter, the Statute of
Limitations begins to run immediately the default takes place or the time
intervenes.”).
33

See, Hearndon v. Graham, 767 So. 2d 1179, 1185 (Fla. 2000) (acknowledging
that “the tolling statute specifically precludes application of any tolling provision
not specifically provided therein.”).
35
See, e.g., Kirtley, 74 So. 2d at 878 (reversing a judgment foreclosing a mortgage
barred under the former version of section 95.281 after finding that “a court of
equity will apply the statute of limitations in an equity suit with the same
substantial effect and same construction as it would receive in a court of law.”).
But see, Morsani, 790 So. 2d at 1080 (holding “that the ‘tolling’ proscription in
section 95.051, Florida Statutes (1991), does not embrace the common law
doctrine of equitable estoppel, for equitable estoppel is not a ‘tolling’ doctrine” but
limiting its “holding to the narrow issue framed by the certified question . . . .”).
36
It has long been the rule in Florida that when “one of two innocent parties must
suffer through the act or negligence of a third person, the loss should fall upon the
___

After determining that enforcement of U.S. Bank’s mortgage is barred by
section 95.11(2)(c), the Court need only confirm that the trial court had the power to
enter the final judgment on appeal to fully resolve this case. Although there is no
appellate precedent in Florida directly on point, well-settled legal principles
regarding the nature of a mortgage in Florida support affirming the final judgment
declaring U.S. Bank’s mortgage to be an unenforceable cloud on title. It is
anticipated, however, that U.S. Bank will argue that section 95.281 prevents that
result because the 5 year time period set forth in that provision is measured from the
date of maturity shown on the face of the recorded mortgage – a day that won’t arrive
for nearly 30 years. That position is not only untenable, it turns section 95.281 on its
head because the purpose of that provision is to encourage timely enforcement of
defaulted mortgages by extinguishing them from the public record by operation. In
other words, the provision is intended to remove all doubt that a mortgage is dead
by killing it as a matter of law. Yet U.S. Bank’s argument would require this Court
interpret section 95.281 in a way that, while not necessarily giving it life, keeps the
unenforceable mortgage on life-support until its inevitable day of reckoning with

one who by his conduct created the circumstances which enabled the third party to
perpetuate (perpetrate) the wrong or cause the loss.” Commercial Credit Co. v.
Parker, 132 So. 640, 642 (Fla. 1931). And this Court has gone as far as stating that
“[n]o rule is better settled than that equity aids the vigilant and not the indolent.”
Lanigan v. Lanigan, 78 So. 2d 92, 96 (Fla. 1955).
___

section 95.281. As is the case with section 95.11(2)(c),
U.S. Bank’s tortured interpretation of the statute is not supported by wellsettled Florida law, which holds that mortgages are merely liens securing repayment
for their underlying debts. Additionally, the mortgage itself becomes a legal nullity
without the remedy of foreclosure because Florida law is clear that a mortgage is
nothing more or less than a “claim” or “right” to a judicially sanctioned public
auction. Finally, if section 95.11(2)(c) is found to apply to bar foreclosure of a
particular mortgage, then section 95.11(2)(b) necessarily bars enforcement of the
note as well. So, from that point on, not only is the mortgage not much of anything,
but it also secures nothing because the underlying debt evidenced by the note is also
barred. Not even the most strained construction of section 95.281 supports allowing
the mortgage to continue to cloud a title holder’s property. The provisions of the
declaratory judgment statute was enacted for the very purpose of providing relief in
circumstances such as this.37
ARGUMENT
I.

U.S. Bank’s mortgage is barred by the plain language of section

See, e.g., Second Nat’l Bank of N. Miami v. G.M.T. Props., Inc., 364 So. 2d 59,
61 (Fla. 3d DCA 1978) (affirming denial of reformation of mortgage and entry of
final judgment cancelling mortgage from the public record as a result of fraud by
the previous holder of the mortgage and confirming that “[t]he relief granted by the
trial judge is appropriate to the situation and is approved under the circumstances .
. . .”
37

___

95.11(2)(c), which was enacted with the specific intent that
equitable principles no longer affect the timeliness of foreclosure
claims, and every court interpreting the provision prior to the
lower court here found that the statute begins to run upon
accleration.
A.

Prior to January 1, 1975, Florida law provided that mortgages
could be foreclosed in equity for 20 years after maturity
regardless of whether the promissory notes they secured were
barred by the shorter 5 year statute of limitations applicable to
written contracts.

In 1974, the law had long been settled that even though enforcement of a
promissory note was barred by the statute of limitation on written contracts now
found at section 95.11(2)(b), an action to enforce the separate and distinct remedy
of foreclosure could be pursued in equity. This Court first found this to be the law
in Florida over 100 years ago in the seminal case of Browne v. Browne, 17 Fla. 607
(Fla. 1880). In what was a monumental decision in the development of our young
state’s law, the Court affirmed a trial court order allowing a mortgage foreclosure to
go forward despite the fact that the related promissory note was barred under the
statute of limitations. In reaching its conclusion, the Court rejected the defendant’s
argument that Florida’s first mortgage statute (enacted in 1853) required that a debt
be recoverable at law in order for a mortgage to be foreclosed in equity.
The Court’s decision was based explicitly on the common law notion that a
promissory note provided the basis for the legal remedy of a money judgment only,
___

and that the remedy of foreclosure was an equitable remedy that was founded upon
the separate mortgage security instrument. On that basis, the Court ruled that because
there were two distinct remedies available to the holder of a promissory note secured
by a mortgage, the fact that one of the remedies was barred did not extinguish the
other remedy. From that premise, the Court then followed New York law in ruling
that mortgages securing repayment of promissory notes were instruments under seal
under the relevant Florida legislative act, and, as was the case in New York, the
legislature had in fact explicitly set forth a 20 year statute of limitations on
instruments under seal.
The Browne decision was revisited by the Florida Supreme Court eight years
later in the case of Jordan v. Sayre, 3 So. 329 (Fla. 1888). In another oft-cited
opinion, the Court approved of the decision in Browne after engaging in an extensive
discussion of the nature of mortgages in Florida after the legislature abrogated the
common law regarding mortgages and their foreclosure in 1853. In what has become
horn-book law in the state, the Jordan Court succinctly explained how this Court
had interpreted the legislature’s initial venture into the realm of the law governing
secured real estate transactions:
“Originally, at common law, a mortgage conveyed the legal estate to
the mortgagee and upon the mortgagor's default in paying the debt at
the time specified for such payment, the estate became vested
absolutely in the mortgagee. Equity, regarding the mortgage as security
___

for a debt, rather than a sale of the land, came to the relief of the
mortgagor, and permitted him to redeem by paying the debt . . . It also
gave the mortgagee a remedy by foreclosure, through which a limit to
the right of redemption might be fixed by decree; and, if the redemption
was not made as decreed, the mortgagor's equity was extinguished, and
the estate was absolute in the mortgagee. This was called a strict
foreclosure. This kind of foreclosure fell into disuse, and the practice
of decreeing a sale of the mortgaged property at public outcry to the
highest bidder has long obtained . . . .”
“In Florida a mortgage is not only in equity merely a lien, but under our
statute it is nothing more than this at law. . . .”
By the time Ellis v. Fairbanks, 21 So. 107 (Fla. 1897) was decided nine years
later, the Court was sufficiently satisfied with the stability of its precedent in Browne
and Jordan to declare that the issue had been “settled beyond any doubt or cavil.”
The Court’s interpretation of the 1853 statute had withstood the test of time, and the
law in Florida was that mortgages could be foreclosed in equity without regard for
whether or not the promissory notes they secured had been timely enforced. But the
Court’s decisions left a number of unresolved questions regarding the relationship
between the mortgage and the note, and the status of the debt after a note becomes
time barred.38 And although the legislature enacted section 95.28 in 1945, that

For instance, in Bank of Wildwood v. Kerl, 189 So. 866, 868 (Fla. 1939) this
Court cited Fairbanks for the settled proposition that mortgages could be
foreclosed even when the debt they secured was barred at law, but was faced with
a question of first impression regarding whether a deficiency judgment could be
obtained where the mortgage could still be foreclosed but the note had been barred.
The Court answered the question in the negative after finding that “the debt
___

provision did not address the timeliness of an accrued claim for foreclosure. Instead,
it provided an outside date of 20 years from maturity (or recording) for enforcement
- often referred to as a repose period - after which no cause of action could ever
accrue. As explained in more detail later, section 95.28 (and now 95.281) was more
akin to today’s Marketable Real Property Title Act, Chapter 712, Florida Statutes
(which was had still not been enacted at the time) than it was to any of the statutes
of limitations in existence at the time of its passage, including 95.11(1), the
limitations period on instruments under the seal this Court had been applying to
mortgages since its decision in Browne.
B.

The 1974 amendments to Chapter 95 were intended in part to
change Florida law so that mortgages would become
unenforceable at the same time as their related promissory notes
– 5 years after “accrual” of the causes of action on each.

The 1974 amendments, which went into effect on January 1, 1975, were
enacted as Chapter 75-234, Laws of Florida. The amendments repealed or amended
every provision of Chapter 95 and were enacted with the specific intent and purpose
of remediating the patent incongruence in the availability of legal and equitable relief

evidenced by the promissory note has become barred by the running of the statute
upon the note . . . [i]t follows that no deficiency decree or personal judgment can
be entered . . . .”
___

for the same harm in Florida.39 The legislature’s intent is manifested by the following
changes to Chapter 95: (1) the shortening of the period from maturity referenced in
section 95.28 (now 95.281) from 20 years to 5 years, the enactment of section
95.11(6), which explicitly states that “[l]aches shall bar any action unless it is
commenced within the time provided for legal actions concerning the same subject
matter”; the limitations periods in section 95.11 applicable to equitable causes of
action (2) the enactment of section 95.11(2)(c) and removal of any mention of
instruments under seal, which the Court had previously interpreted as allowing
mortgages to be foreclosed in equity for 20 years after accrual of a claim; (3) the
enactment of section 95.051, which, for the first time in Florida, statutorily
enumerated an exclusive list of “disabilities” that could be applied to toll any of the
statutes of limitations in 95.11. The legislative history behind the 1974 amendments
further support the conclusion that the legislature intended to completely remove
equity from the statute of limitations equation. According to the available legislative
materials, the amendments were intended to modernize the statute, shorten the

See A114, CS/HB 895 Section Summary (“Section 7 Limitations other than for
the recovery of real property. – This section is the heart of the bill. It contains all
the time periods for limitations other than for the recovery of real property.”).
Add. 2 at Pg. 4.
39

___

longest limitations periods, and close what the legislature perceived to be a loophole
in the law allowing parties to avoid the statute using principles of equity.40
C.

Prior to the lower court’s decision here, every Florida court that
interpreted Chapter 95 after the 1974 amendments correctly
found that acceleration matures the mortgage and begins the
running of the statute of limitations against enforcement of the
entire mortgage debt.

Prior the lower court opinion in this case, every district court of appeals in
Florida had interpreted section 95.11(2)(c) to bar foreclosure of a mortgage more
than 5 years after acceleration. Each of the district courts have decided at least one
case, and the second district has decided four. And although most of these courts
have not applied section 95.11(2)(c) to bar foreclosure, it is only because the
mortgages in those cases had not been accelerated for more than 5 years. Four of the
cases are of particular note, including the fifth district’s opinion in Central Home
Trust Co. v. Lippincott, 392 So. 2d 931 (Fla. 5th DCA 1980). In that case, the Fifth
District Court of Appeals gave examples of effective acceleration that included

See A114, Florida Law Revision Council, Project on Statutes of Limitation,
Some Policy Considerations, (April 8, 1972) (“Many jurisdictions allow
foreclosure of a lien securing property for a debt which has been barred by the
statute of limitations. This is accomplished in some cases because the statute is
inapplicable in equitable actions. Apparently this is the law in Florida. It is
questionable whether the objectives of the statute of limitations are forwarded by
such practice. It seems to be a way of avoiding the statute.”).
___

“alleging acceleration in a pleading filed in a suit on debt.”41 The court only declined
to apply section 95.11(2)(c) to bar the foreclosure claim after finding that “there is
no basis to conclude in this case that the note was accelerated.”42
In USX Corp. v. Schilbe, 535 So. 2d 719 (Fla. 2d 1989), the second district
interpreted sections 95.11(2)(c) and 95.281, and the tolling provisions of section
95.051, and ultimately concluded that the pendency of the defendant’s bankruptcy
did not toll the statute because it was not included in the exclusive list in 95.051. In
Spencer v. EMC Mortg. Corp., 97 So. 3d 257 (Fla. 3d 2012), the Third District Court
of Appeals interpreted 95.11(2)(c) as applying to bar enforcement of a mortgage
foreclosure claim not filed within 5 years of acceleration.43 In a special concurring
opinion, Senior Judge Schwarz concluded that “the record contains unrebutted
affirmative evidence from the plaintiff's representative that a prior owner of the

41
42

Lippincott, 392 So. 2d at 933.
Id.

See Spencer, 97 So. 2d at 260. The court did not reach the statute of limitations
issue because it found that the case should have been dismissed for failure to
prosecute but it indicated that the case would likely have been barred. Id.
(explaining that “[it] appears on the face of the existing record, then, that
acceleration likely occurred over five years before this lawsuit was filed in late
November 2002. . . . But for the dismissal for failure to prosecute, Ms. Spencer
would be entitled to a remand for fact-finding regarding the date of acceleration, a
date which plainly occurred before the maturity date of the note and mortgage
(September 2008).”).
___

mortgage had appropriately accelerated it, thus triggering the limitations period
under section 95.11(2)(c), Florida Statutes (2012), well more than five years before
the commencement of this action.”44 Finally, in a case discussed in more detail later
in this brief, in Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601 (Fla. 2d
2005), the second district interpreted sections 95.11(2)(c) and 95.281 together and
concluded that the foreclosure claim was untimely but that because section 95.281
had not yet terminated the lien, the plaintiff “had no legal recourse to collect the debt
secured by the mortgage; its only recourse would have been to enforce the lien in
the event New River attempted to sell the property . . . .”45
II.

This Court’s limited holding and opinion in Singleton was not
intended to be applied to a statute of limitations analysis as this
Court has consistently recognized that statute of limitations are to
be applied in accordance with legislative intent and Singleton did
not mention or address any statute.
A.

This Court’s limited holding in Singleton was based on the facts
before the Court and on well-settled principles that are specific
to the application of the defense of res judicata and inapplicable
to the defense of statute of limitations.

The holding in Singleton was explicitly based on the well-settled principle in

Spencer, 97 So. 3d at 262.

Houck Corp., 900 So. 2d at 605-606. The court did not give any indication of
how it envisioned enforcement of lien without the use of foreclosure (or any other
court afforded remedy).
___

Florida that “the doctrine [of res judicata] will not be invoked where it will work an
injustice,”

and on the equitable nature of foreclosure proceedings.47 The Court

carefully48 limited its holding by concluding only “that the doctrine of res judicata
does not necessarily bar successive foreclosure suits . . . .”49 The limited nature of
the holding suggests that the Court had a case-by-case analysis in mind.50 Not only
did the Court say nothing about whether another defense (such as the statute of

Singleton, 882 So. 2d at 1008 (quoting deCancino v. Eastern Airlines, Inc., 283
So. 2d 97, 98 (Fla. 1973)).
47
Id. (noting that “foreclosure is an equitable remedy and there may be some
tension between a court's authority to adjudicate the equities and the legal doctrine
of res judicata.”).
48
Though admittedly not as careful as it was in Garden v. Frier, 602 So. 2d 1273,
1277 (Fla. 1992), where the Court went out of its way to emphasize the limited
nature of its holding:
We limit the definition of ‘professional’ set forth above to the context of the
professional malpractice statute. It is not our intent that this definition be applied to
any other reference to ‘professionals’ or ‘professions’ elsewhere in the Florida
statutes, regulations, or rules, or in court cases that deal with issues other than the
statute of limitations at issue here. We recognize that there may be occasions when
courts, legislators, rulemaking authorities, and others may use the terms ‘profession’
and ‘professional’ more broadly or more narrowly than we do here today.”
49

Id. (emphasis added).
It is worth mentioning that most of the Court’s discussion regarding acceleration
was hypothetical. See Singleton, 882 So. 2d at 1007 (explaining in general terms
that “[f]or example, a mortgagor may prevail . . . in those instances . . . under those
circumstances” and “[f]or example, we can envision many instances in which the
application of the Stadler decision would result in unjust enrichment or other
inequitable results.”).
50

___

limitations) would bar successive foreclosure suits, but the holding even leaves room
for the application of res judicata to bar successive suits under the proper
circumstances.
The lower court’s misplaced reliance on the Singleton reasoning appears to
have arisen from the almost natural yet familiar tendency in the interpretation of law
to apply the meaning of a word or concept as it used with respect to one legal rule to
another legal rule without regard for the differences in history, purpose, and
application of each rule. In other words, the lower court was led a stray because it
treated the statute of limitations as in pari materia with res judicata, which resulted
in the court overlooking the “discrete offices of those concepts.” 51 In fairness to the
lower court, and the other courts that have ruled the same way, it is a mistake
repeated so often by practitioners and jurists alike that the Supreme Court of the
United States recently called the following passage from a 1933 Yale Law Journal
article by Walter Cook “a staple of our opinions”:52
“The tendency to assume that a word which appears in two or more
legal rules, and so in connection with more than one purpose, has and
should have precisely the same scope in all of them runs through all
51

Wachovia Bank, NA v. Schmidt, 546 U.S. 303, 318 (2006) (holding that by
“[t]reating venue and subject matter jurisdiction prescriptions as in pari material,
the Court of Appeals majority overlooked the discrete offices of those concepts”
and made an error of law in its interpretation of the word “located”).
52
Gen. Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004).
___

legal discussions. It has all the tenacity of original sin and must
constantly be guarded against.”53
By assuming “that Singleton’s analysis is equally applicable to the statute of
limitations issue,” the court decided the case without conducting an analysis of
legislative intent54 and therefore did not consider the separate but related concepts
of “accrual” and “tolling.”55 It also failed to recognize the two fundamental
differences between the defenses of res judicata and statutes of limitations – history
and policy. Those seemingly innocuous differences are outcome determinative in
this case.
Res judicata is a judicially created doctrine “founded on the sound proposition

Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333,
337 (1933).
54
In fact, the court did not even mention the statutory provision at issue in this case
(other than in a block quote to a federal district court order of dismissal) until the
second to last paragraph as part of its holding that “a foreclosure action for default
in payments occurring after the order of dismissal in the first foreclosure action is
not barred by the statute of limitations found in section 95.11(2)(c) . . . .” Bartram,
140 So. 3d at 1014.
55
See, e.g., Hearndon, 767 So. 2d at 1184-1185 (explaining that the “determination
of whether a cause of action is time-barred may involve the separate and distinct
issues of when the action accrued and whether the limitation period was tolled
…we extrapolate, therefore that while accrual pertains to the existence of a cause
of action which then triggers the running of a statute of limitations, tolling focuses
directly on imitations periods and interrupting the running thereof” and that “both
accrual and tolling may be employed to postpone the running of a statute of
limitations so that an action would not become time barred should not cause
confusion between these distinct concepts”).
53

___

that there should be an end to litigation and that in the interest of the State every
justiciable controversy should be settled in one action.”56 Statutes of limitations are
legislative enactments “designed to protect defendants from unusually long delays
in the filing of lawsuits and to prevent prejudice to defendants from the unexpected
enforcement of stale claims.”57 And, unlike with res judicata,58 courts are not free
under our constitutional system to allow exceptions to the intended application of
statutes of limitations because they reflect the will of the people through the
democratically elected and representative branch of government.59 Additionally, the

Gordon v. Gordon, 59 So. 2d 40 (Fla. 1952).
Caduceus Props., LLC v. Graney, 137 So. 3d 987, 992 (Fla. 2014).
58
For instance, in Craig v. Ocean & Lake Realty Co., 133 So. 569, 573-574 (Fla.
1931), res judicata would have barred an equitable remedy but a statute allowed
recovery of a money judgment at law. In holding that its own rule would have to
yield to the law of the legislature, the Court stated:
57

“It is the duty of the courts to give effect to the legislative intention as thus shown,
even though it infringes to some extent upon the doctrine of res judicata. Statutes
should, when reasonably possible, be so construed as not to conflict with the
Constitution or with long and well settled legal principles, but the language of this
statute, considering it as a whole, cannot be given its apparent meaning and purpose
without upsetting to some extent the principle of res judicata, and thus creating a
somewhat anomalous situation, which will in some cases require a circuit judge to
grant to a party a judgment at law on a cause of action, which, sitting as chancellor
in a court of equity, he had already held such party was not, in equity and good
conscience, entitled to enforce.”
59

As this Court elegantly put it in Ponder v. Graham, 4 Fla. 23, 25 (1851) (internal
citations omitted):
___

policies of each defense are not always implicated together.60 For instance, a plaintiff
could hypothetically file 2, 3, 4, 5, etc., lawsuits within the statute of limitations and
only the policies supporting res judicata would be applicable in determining whether
or not there was a good defense to the second, third, fourth, or fifth attempt to yet
again drag the defendant into court unwillingly to answer the same allegations.
Another plaintiff could file just one complaint many years after the acts giving rise

“The fundamental principle of every free and good government is, that these several
co-ordinate departments forever remain separate and distinct. No maxim in political
science is more fully recognized than this. Its necessity was recognized by the
framers of our government, as one too invaluable to be surrendered, and too sacred
to be tampered with. Every other political principle is subordinate to it — for it is
this which gives to our system energy, vitality and stability. Montesquieu says there
can be no liberty, where the judicial are not separated from the legislative powers.
Mr. Madison says these departments should remain forever separate and distinct,
and that there is no political truth of greater intrinsic value, and which is stamped
with the authority or more enlightened patrons of liberty.”
60

In fact, there are many examples of situations where one defense was applicable
but the other wasn’t. For instance, in Laksy v. State Farm Insurance Company, 296
So. 2d 9, 23 (Fla. 1974), this Court ruled that the bar of res judicata could be
forgiven but warned that the statute of limitations was absolute:
“To allow the earlier dismissal of the complaint with prejudice to stand would have
the effect of depriving the appellants of their rights under the statute by virtue of
dismissal of an action that had not accrued as of the time of dismissal. Under such
an interpretation, the dismissal in the instant cause would bar all recovery despite
qualification thereafter to sue. We find such a construction untenable and hold that
the plaintiff may sue for such damages once the ‘threshold’ has been crossed, so long
as it is within the statute of limitations.” (Emphasis added).
___

to the defendant’s alleged liability, and only the policies supporting the statute of
limitations would be applicable in determining whether the defendant was entitled
to be free of whatever liability might have otherwise attached.
Keeping the respective policy goals in mind, it’s not difficult to see why this
Court declined to rule that the trial courts of Florida are required to deny
enforcement of an otherwise valid mortgage lien in cases like the one before it in
Singleton, where the only reason the defendant prevailed in the first case is because
the plaintiff failed to appear at a status conference and then failed to appeal the
inexplicably harsh dismissal with prejudice that resulted. Doing so would not only
have unjustly enriched the defendant, but it would have effectively extinguished the
mortgage lien before the expiration of the statute of limitations. And because there
had been no “true” adjudication of the rights of either party in the first lawsuit, the
mortgage foreclosure claim would have been lost without the plaintiff even having
had its proverbial “bite at the apple,” which due process requires and upon which
the bar of res judicata is founded.61 This Court has never applied res judicata so

See Universal Const. Co. v. City of Fort Lauderdale, 68 So. 2d 366, 370 (Fla.
1953) (finding “that simple justice demands there be an unquestionable, direct and
official adjudication of [this vitally important] question.”); see also Chandler v.
Chandler, 226 So. 2d 697, 699 (Fla. 4th DCA 1969) (stating that “[i]in order for
the doctrine of res judicata to apply the same parties and issues must be before the
court and a full hearing on the issues must be granted with a final determination of
the issues.”).
___

inflexibly.62 The way in which the Court has historically applied the statutes of
limitations in discussed in the next section.
B.

Reading the plain language of the relevant provisions of Chapter
95 together with one another in light of the history of the statute,
and resolving any ambiguities in favor of an interpretation that
effectuates its purpose, precludes the application of Singleton’s
reasoning in this case.

(1)

Construction of Statutes of Limitations in General

This Court has consistently applied statutes of limitations in accordance with
their legislative intent in light of the unique policy goals that underlie them. 63 The
Court’s commitment is rooted in over 150 years of decisions64 recognizing that
statutes of limitations are legislatively determined and serve an invaluable purpose

Id. at 369 (finding that “when a choice must be made we apprehend that the
State, as well as the courts, is more interested in the fair and proper administration
of justice than in rigidly applying a fiction of the law designed to terminate
litigation.”).
63
See, e.g., Employers’ Fire Ins. Co. v. Continental Ins. Co., 236 So. 2d 177, 181
(Fla. 1976) (finding that “[w]ith respect to the statute of limitations, a different set
of considerations apply” because “[s]tatutes of limitations are enacted to bar claims
which have been dormant for a number of years and which have not been enforced
by persons entitled to enforcement.”).
62

In a case reported in the first volume of the Florida Reports, this Court described
statutes of limitations in the following way: “The Courts do not now, unless
compelled by former decisions, give a strained construction to evade their effect.
By requiring those who complain of injuries, to seek redress by action within a
reasonable time, a salutary vigilance is imposed and an end is put to litigation.”
Bennett v. Herring, 1 Fla. 387 (1847).
___

in our society.65 In fact, even before the enactment of section 95.051, this Court had
consistently refused to disregard statutes of limitations irrespective of the equities
between the parties.66 And the reasons given by this Court have been just as
unwavering – the Court is not free to add words to a statute, 67 irrespective of its view
of the underlying merits of a case, or to interpret it in a way that undermines its

See, e.g., Nardone v. Reynolds, 333 So. 2d 25, 36-37 (Fla. 1976) (explaining that
“[t]he statutes are predicated on the reasonable and fair presumption that valid
claims which are not usually left to gather dust or remain dormant for long periods
of time. . . . [t]o those who are unduly tardy in enforcing their known rights, the
statute of limitations operates to extinguish the remedies; in effect, their right
ceases to create a legal obligation and in lieu thereof a moral obligation may arise
in the aid of which courts will not lend their assistance.”).
66
See, e.g., Erickson v. Ins. Co. of N. America, 63 So. 716, 716 (Fla. 1913)
(holding that “[a]s equity follows the law, and as the alleged causes of action
accrued in 1903 . . . and as these suits were begun in 1912, the five-year statute of
limitations applicable to . . . contracts in writing not under seal, is a bar to these
suits; see also, Gillespie v. Florida Mortgage & Inv. Co., 117 So. 708, 709 (Fla.
1928) (explaining that “[i]n the absence of a saving clause, a statute of limitations
runs against all persons, whether under disability or not” and that “[w]hen a statute
of limitations begins to run, no subsequent disability will prevent it from
running.”).
67
See, e.g., Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952) (emphasizing
that “[w]e cannot write into the law any other exception, nor can we create by
judicial fiat a reason, or reasons, for tolling the statute since the legislature dealt
with such topic and thereby foreclosed judicial enlargement thereof.”); Carey v.
Beyer, 75 So. 2d 217, 218 (Fla. 1954) (explaining that “[t]he general rule is that
unless a statute of limitations contains a saving clause, relief from its provisions
account of disability will not be granted” and that “[w]hen the legislature refuses to
write exceptions into the act the courts have consistently refused to do so.”).
___

purpose.68
Following the approach this Court has consistently taken when presented with
issues of statutory interpretation of statutes of limitations in light of the history
behind the 1974 amendments that brought 95.11(2)(c) into existence leads to the
inevitable conclusion that the Singleton reasoning cannot be extended to apply to a
statute of limitations analysis. To begin, a reading each of the relevant provisions
together leads to the conclusion that section 95.11(2)(c) applies on its face to bar
foreclosure of U.S. Bank’s mortgage. And, even assuming the lower court’s
extension of Singleton’s reasoning to the statute of limitations would otherwise be
sound, nothing in the Singleton opinion can affect the outcome because the
legislature would not have been aware of it in 1974.
(2)

The Plain Meaning of the Relevant Provisions

Section 95.11 plainly states that “[a]ctions other than for recovery of real
property shall be commenced as follows: . . . WITHIN FIVE YEARS. – . . . (c) an
action to foreclose a mortgage.” Section 95.031 states that “the time within which
an action shall be begun under any statute of limitations runs from the time the cause

The Court just recently declined to adopt an interpretation of sections 95.011 and
95.03, which were part of the 1974 amendments, because doing so was “contrary
to the very purpose of the statute of limitations to discourage stale claims.”
Phillips, 126 So. 3d at 192.
___

of action accrues. (1) A cause of action accrues when the last element constituting
the cause of action occurs.” Reading the plain language of these two provisions does
not suggest any facial ambiguity regarding the applicability of 95.11(2)(c) to the
facts of this case. The word “accrue” is defined in section 95.011, and every Florida
court that has evaluated a mortgage payable in installments has agreed that the
foreclosure claim accrues upon acceleration. There is no dispute regarding the
meaning of either “foreclose” or “mortgage,” and there is nothing in the record to
suggest that any of the tolling provisions in 95.051 apply, so there is no ambiguity
regarding any of the words in that provision.
At this point in the analysis, it’s reasonably safe to conclude that the only
doubt or ambiguity that can fairly be said to exist with respect to the any of these
provisions as applied to the facts of this case results from the decision of the lower
court. But because the court did not make any findings as to accrual or tolling, it’s
not possible to say with any degree of certainty how the court would support its
holding if it were to conduct an analysis of legislative intent confined by the normal
principles of statutory construction, particularly in light of the exclusivity language
in section 95.051. Even so, nothing in Singleton the opinion can properly be used as
part of an effort to construe any of these provisions for the simple fact that the
opinion did not exist when they were enacted in 1974. And, because the reasoning
___

is inconsistent with the Court’s pre-1974 pronouncements on acceleration, there is
no reason to assume that the legislature would have seen it coming.69
As this Court explained in Baskerville-Donovan Eng’s, Inc., v. Pensacola
Exec. House Condominium Ass’n, Inc., 581 So. 2d 1301, 1302-1303 (Fla. 1991),
“statutes should be construed with reference to the common law, and we must
presume that the legislature would specify any innovation upon the common law.”
In that case, the Court ruled that its opinions issued after the statute under
consideration was enacted could not be relied on in interpreting the statute because
“[t]o the extent our recent cases may have applied a different gloss to the concept of
privity for these limited circumstances, the legislature would have been unaware of
it when enacting the law in 1974.”
Ironically, one of the few opinions discussing the effect of an optional
acceleration clause with respect to a cause of action for mortgage foreclosure was
Stadler v. Cherry Hill Developers, Inc., 150 So. 2d 468 (Fla. 2d 1963).70 But, like
Singleton, that case did not address the statute of limitations. So it appears that the

The Court in fact explicitly acknowledged that its opinion was at “seeming
variance from the traditional law of res judicata.” Singleton, 882 So. 2d at 1007.
69

That court applied res judicata to bar a second action on the same mortgage after
finding that “[t]here can be no doubt that the accelerated balance was at issue and
that the prayer of the complaint sought, not one interest installment, but the entire
amount due.” Stadler, 150 So. 2d at 472.
___

closest controlling case on point in 1974 was arguably Travis Co. v. Mayes, 36 So.
2d 264 (Fla. 1948). In that case, this Court approvingly noted that “[t]he rule is also
settled that when a mortgage in terms declares the entire indebtedness due upon
default of certain of its provisions or within a reasonable time thereafter, the Statute
of Limitations begins to run immediately the default takes place or the time
intervenes.”71 Additionally, the accepted rule in Florida at the time was that the filing
of a complaint alleging acceleration is an effective exercise of the option.72
Consequently, the common law in Florida the legislature would have been aware of
in 1974 was in accord with the general rule expressed by the post-1974
amendment/pre-Bartram district courts of appeals.73 And under that iteration of the

Mayes, 36 So. 2d at 265.
Jaudon v. Equitable Life Assur. Soc. of United States, 136 So. 517 (Fla. 1931)
(stating that “filing of suit to enforce the mortgage by foreclosure may sufficiently
show his election to exercise his option to accelerate.”); Seligman v. Bisz, 167 So.
38 (Fla. 1936) (holding that “the institution of a suit for foreclosure is the exercise
of the option to declare the whole of the principal sum and interest secured by the
mortgage to be due and payable”) (internal citations omitted); T. & C. Corp. v.
Eikenberry, 178 So. 137, 138-139 (Fla. 1938) (referring to allegations in the
complaint and holding that [t]hese paragraphs sufficiently allege breach of the
covenant of the mortgage, the right of acceleration in the mortgagee, and the
exercise of the option to accelerate”).
73
See, e.g., Lippincott, 392 So. 2d at 931 (explaining that “[e]xamples of
acceleration are a creditor’s sending written notice to the debtor, making an oral
demand, and alleging acceleration in a pleading filed in a suit on the debt”).
72

___

law, U.S. Bank’s mortgage is plainly barred by section 95.11(2)(c).74
(3)

Other Principles of Statutory Construction

Although an examination of the plain language of the relevant statutory
provisions suggests that section 95.11(2)(c) applies on its face, even in light of the
Court’s opinion in Singleton, consideration of other principles of statutory
construction lend support further support to that conclusion. The most simple,
common-sense, reason for that conclusion is that allowing the Singleton reasoning
in this context would completely eviscerate section 95.11(2)(c) because it is almost
impossible to envision a scenario where it would ever apply as intended,75 and it
would stack the deck in favor of creditors by giving them the ability to get around

And, in accordance with the plain language in section 95.11(6), arguably under
95.11(2)(b) (or, perhaps more accurately stated, laches).
75
The result contravene this Court’s unbroken line of decisions holding that
statutes are to be interpreted so that they effectuate their purpose, and this Court
has repeatedly found that among the primary purposes of statutes of limitations is
to discourage stale claims. See, e.g., Driver v. Van Cott, 257 So. 2d 541, 541 (Fla.
1971) (noting that “[t]he constant standard of our authorities through the years has
been that statutory enactments are to be interpreted so as to accomplish rather than
defeat their purpose”); Florida Sugar Distribs. v. Wood, 184 So. 641, 645 (Fla.
1938) (declaring that “the rule is well settled that where two or more
interpretations can reasonably be given to a statute, the one that will sustain its
validity should be given and not one that will . . . defeat its purpose”); City of
Miami v. Romfh, 63 So. 440, 441 (Fla. 1913) (finding that “[a]n interpretation of
the language of a statute that leads to absurd consequences should not be adopted
when, considered as a whole, the statute is fairly subject to another construction
that will aid in accomplishing the manifest intent and the purposes designed”).
___

the statute by their own unilateral acts.76 When this reality is considered together
with the arguable notion (though this brief argues otherwise) that Singleton
eliminates the defense of res judicata in foreclosure cases, defendants are left with
no protection against successive, and perhaps vexatious, never-ending lawsuits – it
simply is not reasonable to conclude that the legislature intended to leave room for
that result.77 And, because the reasoning would apply equally to section 95.11(2)(b)

Allowing the avoidance of the statute of limitations based solely on the acts of a
plaintiff would produce a result that is entirely foreign to American jurisprudence.
See generally, Davis v. Combination Awning & Shutter Co., 62 So. 2d 742, 744745 (Fla. 1953) (finding that “while it is held that during the pendency of litigation
provoked by defendant’s own acts, limitations do not run against plaintiff, this rule
does not ordinarily apply where the legal proceedings relied on to toll the statute
were provoked or promoted by the plaintiff”); see also, Riddlesbarger v. Hartford
Insurance Company, 74 U.S. 386 (1869) (holding that “[t]he failure of a previous
action from any cause cannot alter the case” because the “contract declares that an
action shall not be sustained, unless such action, not some previous action, shall be
commenced within the period designated.”); Richards v. Maryland Ins. Co., 12
U.S. 84, 93 (1814) (holding that “in no case of a voluntary abandonment of action,
has an exception to the statute been supported”).
And this Court has held that if “the meaning of a statute is at all doubtful, the
law favors a rational, sensible construction” and that “[s]tatutes must be construed,
if possible, to make them practicable.” See, e.g., Realty Bond & Share Co. v.
Englar, 143 So. 152, 156 (Fla. 1932) (interpreting a 1925 act amending the
professional regulations statute and finding that “[a]n interpretation that would
require us to hold that a real estate broker or salesman may not enforce payment of
his commission for making a sale . . . would be so unreasonable, unjust, and
oppressive pressive (sic) that we cannot think that the Legislature intended that the
act should receive such a construction.”).
77

___

(given the intended effect of the 1974 amendments), creditors would also be free to
pursue money judgments on accelerated promissory notes for years on end simply
by filing and dismissing successive actions.78 All of these results are repugnant to
American notions of fairness and the orderly administration of justice, and they
undermine fundamental principles of due process, which require that rights be finally
adjudicated, that litigation come to an end, and that disputes be resolved in a fair and
efficient manner.79 In the words of this Court, “[c]construction of a statute which

Benjamin Franklin was apparently not too far off the mark when he wrote that
“[c]reditors have better memories than debtors.” Benjamin Franklin, The Way to
Wealth, 58 (1758). A Federal Trade Commission Study noted that recent estimates
of the size of the secondary debt market in the United States range from $72.3 to
$90 Billion in face value, and that debt buyers pay an average of just 4 cents on the
dollar overall (the median price for mortgages in the FTC study was 10 cents on
the dollar). See A163. The structure and Practices of the Debt Buying Industry at
7-13. The 2013 study explained that “[a]s the debt buyer industry has expanded,
the Commission also has seen a significant rise in the number of debt collection
complaints it received directly from consumers.” Id at 1. As a result of seemingly
abusive practices by debt collectors that result in 90% of consumers sued on timebarred debt having default judgments entered against them, the “FTC
recommended that states change their laws to require collectors to prove that debts
are not time-barred, rather than placing on consumers the burden of raising the
defense of the running of the statute of limitations.” Id. at 45.
79

In the words of this Court:

“The principal function of courts is to resolve controversies in accordance with
law. But the American sense of justice is not satisfied merely with having
controversies resolved. So we have established two important goals which serve as
guidelines to be sought and followed in settlement of all litigation. They are: first,
that justice be as exact and as free from error as human fallibility of judgment
___

would lead to an absurd result should be avoided.”
In light of the above, there are really only two questions left to consider on
the with respect to the interpretation of section 95.11(2)(c). One, is there is any
reason to find that plaintiff’s that exercised acceleration outside of the context of a
court proceeding should be treated any differently than one that effectuated
acceleration through the filing of a complaint, as the lower court implicitly did so by
ruling that the dismissal lifted the statutory bar that would otherwise apply?80 And
two, does the existence of section 95.281 and its longer “statute of repose” change
anything about the analysis? Given the above analysis, the answer to the first
question appears to be no.81 The answer to the second question is discussed in the
permits; and, second, that litigation be finally terminated as quickly as due process
and necessary reflection allows.” Kippy Corp. v. Colburn, 177 So. 2d 193, 196
(Fla. 1965).”
80

This implicit assumption is apparent even in the question that was certified to
this Court, which referred to rule 1.420 of the Florida Rules of Civil Procedure. A
practicable, doctrinally consistent, answer to the questions presented by this case
should not depend on the filing and subsequent dismissal of an action. This would
turn the statute of limitations on its head by placing control of its application in the
hands of the plaintiff, which “would make the statute perpetuate in part the very
evil it was conceived to remedy.” Spencer v. McBride, 14 Fla. 403 (1874). Statutes
“should be construed in light of the evil to be remedied and the remedy conceived
by the legislature to cure that evil.” Brown, 229 So. 2d at 227.
81

New York and Texas appear to reach the same result under their six and four
year statutes, respectively. For instance, in Fed. Nat'l Mortgage Ass’n v. Mebane,
208 AD 2d 892, 894 (App. Div. 2nd Dep’t 1994), a New York court of appeals
held:
___

next section.
III.

Once enforcement of a mortgage is barred by the statute of
limitations is ceases to have any legal effect and the owner of the
real estate encumbered by the mortgage is entitled to have a Florida
court exercise its statutory authority under the Declaratory
Judgment Acts and its equitable powers to enter a judgment
declaring the mortgage to be unenforceable and striking it from the
record as a void cloud on title.

Once the Court determines that section 95.11(2)(c) only allows enforcement
of a mortgage for a period of 5 years from the date of acceleration irrespective of
how acceleration was effectuated, it need only answer one more question to fully
resolve this case: Does a mortgage barred by the statute of limitations have any legal

“[P]laintiff made a failed attempt in 1991 to revive the prior foreclosure action,
and, in fact, in its complaint in the instant action commenced in 1992, the plaintiff
continues to seek recovery of the entire mortgage debt pursuant to the acceleration
clause” Once the mortgage debt was accelerated, the borrowers’ right and
obligation to make monthly installments ceased and all sums became immediately
due and payable. Therefore, the six-year Statute of Limitations began to run at that
time. Consequently, this foreclosure action is time-barred.”
In Holy Cross Church of God in Christ v. Wolf, 44 SW 3d 562, 57 (Tex. 2001), the
Texas Supreme Court held:
“Therefore, the trial court correctly concluded that the Church’s evidence
conclusively established the date its note was accelerated and thus the date Wolf’s
cause of action accrued. And, because we further conclude that the cause of action
accrued after the FDIC had assigned the note, we also hold that the Texas four-year
statute of limitation applicable to foreclosure actions governs this case.
Accordingly, we reverse the court of appeals' judgment and render judgment for
the Church.”
___

effect? If the Court’s answer to that question is no, then there can be no legitimate
doubt that the trial courts of Florida have the authority to strike the mortgage from
the public record. As this Court has long recognized and affirmed, trial courts
afforded broad powers by Chapter 86 of the Florida Statutes to enter declaratory
judgments on issues of both fact and law.82
U.S. Bank has argued in this case that section 95.281 prevented the trial court
from entering a final judgment striking its mortgage from the public record and
releasing the lien. But U.S. Bank’s position is fundamentally flawed because it
assumes (without explanation) that a mortgage is something more than a right to a
foreclosure sale. As already mentioned, one Florida court has found (though
arguably in dicta) that a mortgage barred under section 95.11(2)(c) can survive as an
encumbrance on the property. According to the court in Houck Corp., the plaintiff
“had no legal recourse to collect the debt” but he could “enforce the lien in the event
[the property owner] attempted to sell the property” before the mortgage expired by

Section 86.011 provides original jurisdiction to enter a declaration “on the
existence, or nonexistence” of “any immunity, power, privilege, or right” or of
“any fact upon which the existence or nonexistence of such immunity, power,
privilege, or right does or may depend” and to determine “any question of
construction or validity arising under [a] statute, regulation, municipal ordinance,
contract, deed, will, franchise, or other article, memorandum, or instrument in
writing . . . .” § 86.011 at (1)-(2), Fla. Stat. (2014). It also provides that the
declaration “has the force and effect of a final judgment.” Id.
82

___

operation of law.83 The Houck court not only apparently misinterpreted section
95.281, but it overlooked one of the most basic tenants of law – the law does not
recognize rights for which there are no legal remedies.84 And because a mortgage is
nothing in Florida if not a “right,” a mortgage barred by section 95.11(2)(c) ceases
to exist as far as the law is concerned.85 The existence of section 95.281 doesn’t
change the result because the only mandate emanating from its plain language is that
every mortgage recorded in Florida ultimately be extinguished by it.86
This Court first explained the function of declaratory judgments over 80 years
ago when it interpreted the originally enacted Declaratory Judgment Statute, Chapter
7857, Law of Florida (1919) to be in abrogation of the common law rule that required
injury because “a declaratory decree contemplates that parties may be in doubt as to

Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601, 606 (Fla. 2d 2005).
As this Court explained “[t]hose who are unduly tardy in enforcing their known
rights, the statute of limitations operates to extinguish the remedies; in effect, their
right ceases to create a legal obligation and in lieu thereof a moral obligation may
arise in the aid of which courts will not lend their assistance.” Nardone v.
Reynolds, 333 So. 2d 25, 36-37 (Fla. 1976).
84

See, e.g., Martyn v. First Fed. Sav. & L. Ass’n of W. Palm Beach, 257 So. 2d
576, 577 (Fla. 4th 1971) (explaining that “Florida has maintained its position in the
lien column since 1853. . . . [t]he mortgage lien is itself a species of intangible
property. . . . [i]t is a chose in action which creates a lien on the land but not an
interest in the land”) (internal citations omitted).
85

It provides that the lien of the mortgage “shall terminate . . . .” Nothing in the
provision indicates that any lien shall survive for any particular period of time.
86

___

their rights, and that they may have a judicial determination of them before wrong
has been committed or damage done.” That version of the Statute was replaced by
the uniform Declaratory Judgment Act, chapter 21280, Laws of Florida (1943),
which is grants much broader powers, and the statute was later moved to Chapter
86, where it currently resides. This Court recently confirmed that “there has been a
‘repeated adherence by Florida courts to the notion that the declaratory judgment
statute should be liberally construed.’”87 Although a liberal construction of the
statute is not necessary to support the notion that trial courts have the power to strike
a barred mortgage from the public record as an invalid cloud on title, this Court’s
adherence to liberal application of the statute serves to remove any remaining doubt
on the issue.
CONCLUSION
For the reasons set forth in this brief, Petitioner, Patricia Bartram, respectfully
requests that the Court answer the certified question in a way that reinstates the final
judgment entered by the trial court and affords the most complete relief available
under the law.
Dated: November 5, 2014
Miami, FL
Respectfully submitted,

Higgins v. State Farm Fire and Cas. Co., 894 So. 2d 5, 12 (Fla. 2004).
___

P.A. Bravo, P.A.
17 Sevilla Avenue
Coral Gables, FL
305.209.9019
pabravo@pabravo.com
service@pabravo.com

By: /s/Paul Alexander Bravo
Paul Alexander Bravo
Florida Bar No. 38275

Certificate of Service
I hereby certify that on November 5, 2014, a true copy of the foregoing was
sent via email to the parties on the service list below.

/s/Paul Alexander Bravo
Paul Alexander Bravo

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Paul Alexander Bravo

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SERVICE LIST

Counsel for U.S. National Bank

Counsel for Patricia J. Bartram

Heidi J. Weinzetl, Esq.
Michael D. Starks, Esq.
Baker, Donelson, Bearman
Caldwell & Berkowitz, PC
Bank of America Center
390 North Orange Avenue
P.O. Box 1549
Orlando FL, 32802
hweinzetl@bakerdonelson.com
mstarks@bakerdonelson.com
tzasada@bakerdonelson.com
tgoff@bakerdonelson.com

Lawrence C. Rolfe, Esq.
Brett H. Burkett, Esq.
Rolfe & Lobello, P.A.
P.O. Box 4400
Jacksonville, FL 32201-4400
lcr@rolfelaw.com
bhb@rolfelaw.com

Counsel for the Plantation at Ponte
Vedra, Inc.

Jason Bravo
P.A. Bravo, P.A.
17 Sevilla Ave
Coral Gables, FL 33134
jbravo@pabravo.com
service@pabravo.com
Counsel for Lewis Brooke Bartram

T. Geoffrey Heekin, Esq.
Hunter Malin, Esq.
Catherine R. Michaud, Esq.
Heekin, Malin & Wenzel, P.A.
P.O. Box 477
Jacksonville, FL 32201
gheekin@jax-law.com
hmalin@jax-law.com
cmichaud@jax-law.com
Paul Alexander Bravo
P.A. Bravo, P.A.
17 Sevilla Ave
Coral Gables, FL 33134
pabravo@pabravo.com
service@pabravo.com

Micahel Alex Wasylik, Esq.
Ricardo & Wasylik, PL
P.O. Box 2245
Dade City, FL 33526
service@ricardolaw.com
Thomas R. Pycraft, Esq.
Pycraft Law, LLC
2825 Lewis Speedway, Suite 107
St. Augustine, FL 32084
tom@pycraftlaw.com
service@pycraftlaw.com
Dineen Pashoukos Wasylik, Esq.
DPW Legal
P.O. Box 48323
Tampa, FL 33646
dineen@ip-appeals.com
service@ip-appeals.com

www.pabravo.com

SERVICE LIST

Kendall B. Coffey, Esq.
Jeffrey B. Crockett, Esq.
Daniel F. Blonsky, Esq.
2601 S. Bayshore Drive, PH
Miami, FL 33133
kcoffey@coffeyburlington.com
jcrockett@coffeyburlington.com
dblsonky@coffeyburlington.com
vmontejo@coffeyburlington.com
grogue@coffeyburlington.com
service@coffeyburlington.com
Counsel for Florida Alliance for
Consumer Protection and Florida
Consumer Action Network
Alice M. Vickers, Esq.
Florida Alliance for Consumer
Protection
623 Beard Street
Tallahassee, FL 32303
alicevickers@flacp.org
Counsel for Brevard County Legal
Aid, Inc.
Sarah E. Mattern, Esq.
Brevard Legal Aid
1038 Harvin Way Ste 100
Rockledge, FL 32955-3254
eservice@brevardlegalaid.org
sarahmattern@brevardlegalaid.org

Counsel for Florida Consumer
Umbrella Group of Florida Legal
Services, Inc.
Kimberly L. Sanchez, Esq.
Community Legal Services of MidFlorida
122 E Colonial Dr Ste 200
Orlando, FL 32801-1219
kimberlys@clsmf.org
dulcef@clsmf.org
miam@clsmf.org
Counsel for American Legal and
Financial Network
Robert R. Edwards, Esq.
Johnathan I. Meisels, Esq.
Robertson, Anschutz & Schneid, PL
6409 Congress Avenue, Suite 100
Boca Raton, FL 33487
redwards@rasflaw.com
mail@rasflaw.com
lsarvey@rasflaw.com
Shaib Y. Rios, Esq.
Curtis J. Herbert, Esq.
Brock and Scott PLLC
1501 NW 49th Street, Suite 200
Fort Lauderdale, FL 33309
Sahib.rios@brockandscott.com
Curtis.herbert@brockandscott.com
Robyn R. Katz, Esq.
Jane E. Bond, Esq.
McCalla Raymer, LLC
225 E. Robinson Street, Suite 660
Orlando, FL 32801
rrk@mccallaraymer.com

www.pabravo.com

SERVICE LIST

jnb@mccallaraymer.com

Counsel for Bradford Langworthy

Melissa A. Giasi, Esq.
Richard S. McIver, Esq.
Kass Shuler, P.A.
1505 N. Florida Avenue
Tampa, FL 33602
mgiasi@kasslaw.com
rmciver@kasslaw.com

Peter D. Ticktin, Esq.
Timothy R. Quinones, Esq.
The Ticktin Law Group, P.A.
600 W Hillsboro Blvd Ste 220
Deerfield Beach, FL 33441-1610
Serv512@legalbrains.com
Serv515@legalbrains.com

Andrea R. Trombert, Esq.
Gladstone Law Group, P.A.
1499 W. Palmetto Park Road, Ste 300
Boca Raton, FL 33486
atromberg@gladstonelawgroup.com

Counsel for Upside Property
Investment

Elizabeth R. Wellborn, Esq.
Elizabeth R. Wellborn, P.A.
350 Jim Moran Blvd, Suite 100
Deerfield Beach, FL 33442
wellborn@erwlaw.com

John S. Mills, Esq.
Andrew D. Manko, Esq.
The Mills Firm
203 N. Gadsden Street, Suite 1A
Tallahassee, FL 32301
jmills@mills-appeals.com
amanko@mills-appeals.com
service@mills-appeals.com

Michelle G. Gilbert, Esq.
Jennifer Lima-Smith
Gilbert Garcia Group, P.A.
2004 Pan American Cir., Suite 110
Tampa, FL 33607
mgilbert@gilbertgrouplaw.com
jlima-smith@gilbertgrouplaw.com
Counsel for National Association of
Consumer Advocates
Lynn E. Drysdale, Esq.
Jacksonville Area Legal Aid Inc.
126 W Adams St
Jacksonville, FL 32202-3849
Lynn.drysdale@jaxlegalaid.org
jalaconsumer@jaxlegalaid.org
www.pabravo.com

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