      Third District Court of Appeal
                              State of Florida

                          Opinion filed April 27, 2016.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                              No. 3D14-2801
                         Lower Tribunal No. 13-9865
                            ________________


               Eulalia Balaguer and Juan H. Balaguer,
                                  Appellants,

                                       vs.

                      Chase Home Finance, LLC,
                                   Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Ronald
Dresnick, Judge.

     John H. Ruiz and Christine M. Lugo, for appellants.

     McCalla Raymer and Toby Foor-Pessin, (Orlando), for appellee.


Before WELLS, ROTHENBERG and SCALES, JJ.

     WELLS, Judge.
         Eulalia and Juan H. Balaguer appeal from an order dismissing their action to

quiet title and for declaratory relief, wherein they sought to have the mortgage they

executed in May of 2007 as security for a $416,800 promissory note declared null

and void and to have the property encumbered by it released from the lien imposed

by that mortgage. For the following reasons, we affirm.

         The record reflects that, on January 29, 2008, the bank filed a complaint for

foreclosure which contained an allegation exercising its contractual right to

accelerate the entire debt for nonpayment and declaring the full amount due.

Chase Home Fin., LLC v. Balaguer, Case No. 08-05648-CA-31. When the bank

failed to appear at trial scheduled for February 14, 2011, the trial court dismissed

the foreclosure action without prejudice. On March 18, 2013, the Balaguers filed

the instant action to quiet title to the subject property, which is predicated on the

assertion that the payments due under the promissory note and the mortgage

securing it were accelerated, but not foreclosed, more than five years ago thereby

not only making the debt uncollectable pursuant to the applicable statute of

limitations1, but also nullifying the mortgage lien securing it.

         In Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2016 WL

1445415 (Fla. 3d DCA Apr. 13, 2016) (en banc), this court confirmed that a lender

is not precluded from collecting on a defaulted promissory note where, as here, a


1   See § 95.11(2)(c), Fla. Stat. (2013).

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prior foreclosure action accelerating payment on a default has been dismissed.

Nevertheless, even where a lender is barred by the statute of limitations from

pursuing foreclosure during the term of a loan—an issue which is not currently

before us—Beauvais also confirms that the lien imposed by the mortgage securing

the still outstanding debt remains in effect until five years after the maturity date of

the obligation. Id. (reversing “that portion of the trial court’s order which declared

that the mortgage was null and void, canceled same, and quieted title to the

property in favor of the Association”); see § 95.281(1)(a), Fla. Stat. (2013)

(providing that the “lien of a mortgage . . . encumbering real property, herein

called mortgage . . . shall terminate . . . [i]f the final maturity of an obligation

secured by a mortgage is ascertainable from the record of it, 5 years after the date

of maturity”) .2

      For these reasons, the order dismissing the instant action is affirmed.




2 The mortgage at issue, which was recorded in the public records, expressly states
that it secures a promissory note dated May 9, 2007, in the amount of $416,088
plus interest to be paid “in full not later than June 01, 2037.”

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