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Avelo Mortgage, LLC v. Vero Ventures, LLC

Florida Court of Appeals, Fourth District

June 27, 2018

AVELO MORTGAGE, LLC, Appellant,
v.
VERO VENTURES, LLC, a Florida Limited Liability Company; RICHARD HARVEY; JACK MECCA; EUTELYN SATCHELL; HORNER EQUIPMENT OF FLORIDA, INC., a Florida Corporation, n/k/a HORNERXPRESS-SOUTH FLORIDA, INC.; OSWALD WALKER; ROLLAND AMMONS d/b/a PRESTIGE ALUMINUM; DANA FORMAN d/b/a JUDGMENT RESOLUTION; WILLIAM & MARLENE MACIAG; MARILYN C. RINEHART; ROBERT P. SUMMERS, ESQUIRE; CAPITAL ONE BANK; CITY OF PORT ST. LUCIE; WASTE MANAGEMENT INC. OF FLORIDA; THE UNITED STATES OF AMERICA; PORT ST. LUCIE UTILITIES DEPARTMENT; and BARBARA WAKULA, deceased, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; William L. Roby, Judge; L.T. Case No. 2013-CA-002010.

          Diana B. Matson and Joshua R. Levine of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Fort Lauderdale, for appellant.

          Louis B. Vocelle, Jr. of Vocelle & Berg, LLP, Vero Beach, for appellee Vero Ventures, LLC.

          Damoorgian, J.

         Avelo Mortgage, LLC ("Avelo") appeals a summary judgment entered in favor of Vero Ventures, LLC ("Owner") on its quiet title action. For the reasons discussed below, we reverse and remand for entry of summary judgment in favor of Avelo.

         Undisputed Material Facts

         In 2007, Avelo initiated a mortgage foreclosure action against Barbara Wakula ("Borrower") after she defaulted on a $185, 000 loan. The complaint alleged that the loan was secured by a purchase money mortgage and that Avelo was the owner and holder of the subject note and mortgage. In addition to Borrower, the complaint listed Steven and Rose Wallen ("Creditors") as defendants based on a judgment they held against Borrower. In 2010, Avelo's foreclosure action was dismissed for lack of prosecution.

         In June 2013, Owner filed an action to quiet title to the subject real property and listed Avelo as a defendant. The complaint alleged that in April 2013, Creditors acquired title to the subject real property by virtue of a Sheriff's deed and thereafter, transferred their interest in the property to Owner via a quit claim deed. The complaint also generally alleged that Owner's interest in the real property was superior to Avelo's interest.

         Avelo answered the complaint and denied all of the material allegations, including the allegation that Owner's interest in the subject property was superior to Avelo's interest. Avelo also filed a counterclaim seeking a declaration that its mortgage was a valid, enforceable lien on the subject property and that its interest in the property was superior to Owner's interest. Owner answered the counterclaim and denied all of the material allegations. Owner also raised several affirmative defenses to Avelo's counterclaim, including that enforcement of Avelo's lien was barred by the applicable statute of limitations and repose. Owner's statute of limitations and repose argument was premised on the belief that once Avelo accelerated the underlying note in the dismissed 2007 foreclosure action, the five-year statute of limitations began to run from that date. As Avelo had not re-filed a foreclosure action within those five years, Owner maintained that Avelo was forever barred from enforcing its lien.

         The parties eventually each filed motions for summary judgment. In its motion, Avelo argued that pursuant to Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004), the dismissal of the 2007 foreclosure action had the effect of placing the parties back in the same contractual relationship and revoking the declared acceleration. Accordingly, the statute of limitations did not bar a subsequent foreclosure action so long as the subsequent action was predicated upon a separate period of default from the one alleged in the first action. Therefore, Avelo's mortgage remained a valid, enforceable lien on the subject property and, as a matter of law, constituted a cloud on the property for purposes of a quiet title action. Acknowledging the Singleton decision, Owner maintained that the holding in that case should not be invoked to bar its quiet title action because enforcement of Avelo's mortgage was barred by laches, the statute of repose, and by the fact that Avelo failed to raise a foreclosure action as a compulsory counterclaim to the quiet title action.

         Following a hearing on the parties' respective motions, the court entered an order granting Owner's motion for summary judgment on its quiet title action and declaring Avelo's mortgage null and void. Additionally, the court denied Avelo's motion for summary judgment on its declaratory relief action. The court concluded that Avelo's mortgage did not constitute a valid, enforceable lien against the property for several reasons. First, the court reasoned that the holding in Singleton should not be invoked to bar Owner's quiet title action because Avelo's prior foreclosure action was dismissed for failure to prosecute. Second, the court concluded that the statute of repose separately barred any future foreclosure action because, by accelerating all sums due and owing under the subject note and mortgage in the 2007 foreclosure action, Avelo changed the final maturity date. Third, the court reasoned that Avelo "unequivocally sat on its hands since 2008" and enforcement of its mortgage was therefore barred by laches. Finally, the court found that Avelo's failure to file a foreclosure action as a "compulsory" counterclaim to the quiet title action necessarily barred any future foreclosure action. This appeal follows.

         Analysis

         1) Statute of Limitations ...


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