Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT GLOBAL DISCOVERIES, LTD., LLC, ) ) Appellant, ) ) v. ) Case No. 2D19-3627 ) HUBBLE C. KELLER; RS ) PROPERTIES OF POLK COUNTY, ) LLC; BANK OF AMERICA N.A.; and ) ELIZABETH J. GLEASON, ) ) Appellees. ) ) Opinion filed July 17, 2020. Appeal from the Circuit Court for Polk County; Gerald P. Hill, II, Judge. Michael Farrar, Aventura, for Appellant. Michael C. Caborn and C. Andrew Roy of Winderweedle of Haines, Ward & Woodman, P.A., Winter Park, for Appellee, Bank of America, N.A. No appearance for remaining Appellees. SLEET, Judge. Global Discoveries LTD, LLC appeals the final summary judgment in favor of Bank of America (BOA) in an interpleader action brought by the Polk County Clerk of Court to determine priority to proceeds arising from a tax deed sale of real property. Global argues that BOA did not have a valid interest because its mortgage lien expired before the clerk's tax deed sale and that BOA therefore had no lien rights to enforce. Because BOA had a valid interest, we affirm. On February 10, 2000, Keller & Associates executed and delivered to BOA a mortgage which encumbered property owned by Keller & Associates located in Lakeland, Florida. The mortgage was recorded on February 18, 2000. On October 16, 2009,1 BOA filed an action for foreclosure, damages, and replevin against Keller & Associates and Ted Keller, individually, based upon a default on the March 2009 payment. On April 30, 2010, BOA obtained a final judgment for damages and replevin against Keller & Associates, and the trial court reserved jurisdiction to adjudicate the foreclosure and the actions against the guarantor, Ted Keller. On May 3, 2010, Elizabeth Gleason was awarded a judgment against Keller & Associates, and the judgment became a lien against the property.2 On May 13, 2010, Gleason recorded her lien. On August 3, 2010, Keller & Associates filed for bankruptcy, and the foreclosure proceeding was stayed. On August 9, 2011, BOA obtained a final judgment against Ted Keller, individually, and the trial court reserved jurisdiction over the subject matter and the parties. On April 19, 2018, the property was sold at a tax deed sale. On May 18, 2018, Gleason assigned her judgment against Keller & Associates to Global. Thereafter, the Polk County Clerk of Court commenced the interpleader action to seek a The final order incorrectly states that the foreclosure action was filed on 1 October 6, 2009. 2The record does not contain any pleadings or information concerning the nature of Gleason's lien. -2- determination of entitlement to surplus proceeds from the tax deed sale. The only two parties that claimed an entitlement to the surplus proceeds were BOA and Global. BOA claimed an interest pursuant to its mortgage on the property, dated February 10, 2000, and recorded February 18, 2000. The mortgage reflects a maturity date of February 10, 2010.3 Global claims an interest pursuant to Gleason's judgment lien arising from a final judgment obtained on May 13, 2010. Both Global and BOA moved for summary judgment asserting priority to the entirety of the proceeds. Global claimed it was entitled to the surplus by virtue of Gleason's recorded lien against Keller. BOA recorded the mortgage on February 18, 2000, and timely filed the foreclosure action within the five-year statute of limitations period pursuant to section 95.11(2)(c), Florida Statutes (2015). Global nevertheless argued that BOA's mortgage was no longer a valid lien against the property at the time of the tax deed sale because the lien expired on February 10, 2015, by operation of law pursuant to section 95.281(1)(a).4 Global asserted that the timely filed foreclosure action was immaterial because the clerk had destroyed the file, thus rendering BOA's lien invalid. However, the trial court found that BOA preserved its right to claim the lien by timely filing the foreclosure action before the lien expired and that although the clerk had destroyed the physical file, that action remained pending because there had been no judicial disposition or dismissal of the foreclosure count. Accordingly, the trial court granted final summary judgment in favor of BOA. 3The final order incorrectly states that the final maturity date was May 2, 2010. 4 The final order incorrectly states that the lien expired on May 2, 2015. -3- The timeliness of an action to foreclose a mortgage is controlled by section 95.11(2)(c), a statute of limitations, and the duration of the lien created by such mortgage is governed by section 95.281, a statute of repose. A statute of repose limits the time within which an action may be brought unrelated to the accrual of the cause of action. CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014). A statute of limitations, on the other hand, governs the time within which an action must be commenced after the cause of action accrues. Id. at 7. Statutes of repose and limitations are sometimes confused because they are similar. "[B]oth are mechanisms used to limit the temporal extent or duration of liability for tortious acts." Id. And both prescribe the time period within which a plaintiff may commence an action. Id. However, while a statute of limitations bars a cause of action if not brought within a certain time period, a statute of repose prevents a cause of action from arising after a certain period. Id. at 8. A statute of repose is equivalent to a cutoff that protects a defendant from being sued and absolves him or her from liability after a legislatively determined period of time has expired. Id. But a statute of repose cannot bar an action that is filed within the applicable statute of limitations and remains pending after the expiration of the repose period. Section 95.11(2)(c) serves as a statute of limitations and provides that an action to foreclose a mortgage must be commenced within five years from when the right to foreclose accrues. Here, BOA asserted a payment default date of March 2009. Since BOA filed the foreclosure action on October 16, 2009, clearly within five years of the alleged default, BOA retained the right to enforce the lien. Section 95.281(1)(a) provides that the lien of a mortgage terminates five years after the date of maturity when a final maturity date is ascertainable from the record of the mortgage. It serves as a -4- statute of repose and "establishes an ultimate date when the lien of the mortgage terminates and is no longer enforceable." Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601, 603 (Fla. 2d DCA 2005). Here, because BOA's foreclosure action was filed before the repose period expired on February 10, 2015—five years after the mortgage matured—the action was not barred by the statute of repose. See CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs, 198 So. 3d 3, 9 (Fla. 2d DCA 2015). Furthermore, the foreclosure action had not been dismissed prior to the tax deed sale for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e), and there was no final judgment in the foreclosure action upon which the clerk could destroy the file pursuant to Florida Rule of Judicial Administration 2.430(c)(1)(C). Thus, the clerk's destruction of the file did not terminate the action for purposes of the statute of repose. The trial court reserved jurisdiction over the foreclosure action, and the lien remained valid before the tax deed sale commenced. We conclude that if a plaintiff timely files a cause of action within the statute of limitations period, an applicable statute of repose will not terminate that pending action. Section 95.281, as a statute of repose, applies when a foreclosure action has not been filed within the statute of limitations set forth in section 95.11(2)(c), which is five years after default for a mortgage foreclosure. Such was not the case here. Accordingly, we affirm. Affirmed. CASANUEVA and KELLY, JJ., Concur. -5-