1. The Fourth DCA recently issued an opinion wherein it reversed a summary judgment in favor of an owner (non-mortgagor) based on a quiet title action the owner filed against the bank. Avelo Mortg., Ltd. Liab. Co. v. Vero Ventures, Ltd. Liab. Co., No. 4D14-4147, 2018 Fla. App. LEXIS 9100 (4th DCA June 27, 2018). The owner, Vero Ventures, successfully argued to the trial court that enforcement of Avelo’s mortgage lien was “barred by the applicable statute of limitations and repose,” the doctrine of laches, and because “Avelo failed to raise a foreclosure action as a compulsory counterclaim to the quiet title action.” The lower court entered a summary judgment quieting title to the property in favor of the Owner “and declar[ed] Avelo’s mortgage null and void.”
  2. The Fourth DCA reversed Vero Venture’s summary final judgment finding the statute of limitations had not run since the court dismissed Avelo’s prior foreclosure and each new default created a new cause of action. The Court also found the doctrine of laches inapplicable since Avelo’s failure to promptly assert its right to foreclose benefitted rather than prejudiced the Owner. Without a showing of prejudice, the Owner could not rely on the doctrine of laches to quiet title to the property.
  3. Lastly, the Court found Avelo was not required to file a compulsory counterclaim to foreclose because the basis for a counterclaim had not accrued as to a “foreclosure action predicated upon a future period of default.” The unaccrued claim was not mature and therefore not compulsory. The Court also explained even if Avelo was required to file a compulsory counterclaim to foreclose, its failure to do so did not affect the validity of its mortgage which remained “a valid lien against the property…until five years after the maturity date of the debt secured by the mortgage.” The Court’s decision will become final July 13, 2018 provided a motion for rehearing is not filed before that date.

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