final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; William L. Roby, Judge; L.T. Case No.
B. Matson and Joshua R. Levine of Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC, Fort Lauderdale, for appellant.
B. Vocelle, Jr. of Vocelle & Berg, LLP, Vero Beach, for
appellee Vero Ventures, LLC.
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
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.
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.
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.
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.
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.
Statute of Limitations ...