final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Joseph Marx, Judge; L.T. Case No.
G. Waldman of Law Offices of Damian G. Waldman, P.A., Largo,
Preston J. Fields, Sr. of Preston J. Fields, P.A., Palm Beach
Gardens, for appellee.
Can Financial, LLC ("Bank") appeals a final summary
judgment that was entered in favor of Appellee Laura Krazmien
("Borrower"). The summary judgment was premised on
the trial court's determination that Bank's
foreclosure complaint against Borrower was barred by the
statute of limitations applicable to foreclosure actions, as
the complaint was filed more than five years after
Borrower's debts were discharged in bankruptcy. The trial
court erred in its application of the statute of limitations
to this case. Thus, we reverse.
personal debts were discharged in Chapter 7
bankruptcyon August 31, 2009. She made no further
payments on her note and mortgage after the discharge. Bank
filed an in rem action for foreclosure on February
2, 2017 alleging a February 5, 2012 default on Borrower's
monthly installments, followed by subsequent defaults as
Borrower had made no payments since January 2012. Borrower
answered the complaint with the affirmative defense that Bank
had only five years from the date that Borrower's debts
were discharged in bankruptcy (August 31, 2009) to file the
complaint, and that Bank failed to do so.
relied upon this statute of limitations defense in moving for
summary judgment. In granting the motion, the trial court
made the following findings and conclusions of law: the debt
memorialized in the note and mortgage was discharged in
bankruptcy; no subsequent defaults occurred after the debt
was discharged; Bank filed for foreclosure more than five
years later; the foreclosure was barred by the five year
statute of limitations of section 95.11(2)(c), Florida
Statutes (2009); and a valid lien on the property would
remain throughout the statute of repose. The order is before
us on appeal.
standard of review for a trial court's ruling on a
summary judgment is de novo." Cabo Flats Jupiter,
LLC v. Dawley, 236 So.3d 464, 465 (Fla. 4th DCA 2018).
Likewise, "[g]enerally, 'the issue of whether [a]
claim is barred by the statute of limitations is a question
of law subject to de novo review.'" Access Ins.
Planners, Inc. v. Gee, 175 So.3d 921, 924 (Fla. 4th DCA
2015) (second alteration in original) (quoting Beltran v.
Vincent P. Miraglia, M.D., P.A., 125 So.3d 855, 859
(Fla. 4th DCA 2013)).
Chapter 7 "bankruptcy discharge extinguishes only one
mode of enforcing a claim-namely, an action against the
debtor in personam- while leaving intact
another-namely, an action against the debtor in
rem." Johnson v. Home State Bank, 501 U.S.
78, 84 (1991) (discussing 11 U.S.C. §§ 522(c)(2),
524(a)(1)). "A mortgage is an interest in real property
that secures a creditor's right to repayment."
Id. at 82. "[A] creditor's right to
foreclose on the mortgage survives or passes through the
bankruptcy." Id. at 83.
a bankruptcy discharge, a debtor has "three options with
respect to property subject to a lien or mortgage: (1)
surrender the property; (2) redeem the property; or (3)
reaffirm the debt." Alvarez v. Bank of Am.
Corp., No. 14-CV-60009-KAM, 2015 WL 12670510, at *3
(S.D. Fla. Apr. 17, 2015) (quoting In re Steinberg,
447 B.R. 355, 357 (Bankr. S.D. Fla. 2011)).
When a debtor is unwilling to enter into a reaffirmation
agreement and unable to pay off the mortgage, the mortgagee
may nonetheless determine that it does not wish to obtain its
collateral or dispossess the debtor. The debtor may continue
to make periodic mortgage payments in order to discourage the
mortgagee from foreclosing on the property. The mortgagee may
accept such payments and not seek to foreclose. Section
524(j) [of the Bankruptcy Code] recognizes this possibility
and specifically empowers the mortgagee to take action ...