       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                       AVELO MORTGAGE, LLC,
                             Appellant,

                                   v.

VERO VENTURES, LLC, a Florida Limited Liability Company; RICHARD
HARVEY; JACK MECCA; EUTELYN SATCHELL; HORNER EQUIPMENT
  OF FLORIDA, INC., a Florida Corporation, n/k/a HORNERXPRESS-
   SOUTH FLORIDA, INC.; OSWALD WALKER; ROLLAND AMMONS
  d/b/a PRESTIGE ALUMINUM; DANA FORMAN d/b/a JUDGMENT
    RESOLUTION; WILLIAM & MARLENE MACIAG; MARILYN C.
 RINEHART; ROBERT P. SUMMERS, ESQUIRE; CAPITAL ONE BANK;
CITY OF PORT ST. LUCIE; WASTE MANAGEMENT INC. OF FLORIDA;
  THE UNITED STATES OF AMERICA; PORT ST. LUCIE UTILITIES
         DEPARTMENT; and BARBARA WAKULA, deceased,
                             Appellees.

                            No. 4D14-4147

                            [June 27, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; William L. Roby, Judge; L.T. Case No. 2013-CA-002010.

   Diana B. Matson and Joshua R. Levine of Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC, Fort Lauderdale, for appellant.

   Louis B. Vocelle, Jr. of Vocelle & Berg, LLP, Vero Beach, for appellee
Vero Ventures, LLC.

DAMOORGIAN, J.

   Avelo 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 Avelo.

Undisputed Material Facts

  In 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.

    In June 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.

    Avelo 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.

    The 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.

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   Following 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.

Analysis

   1) Statute of Limitations and Statute of Repose

    We begin our analysis by addressing the trial court’s finding that
enforcement of Avelo’s mortgage was barred by the statute of limitations
and statute of repose. The issue of whether acceleration of the amounts
due under a note and mortgage in a later dismissed foreclosure action
triggers application of the five-year statute of limitations under section
95.11(2)(c), Florida Statutes (2014) has been clearly decided by our
supreme court in Bartram v. U.S. Bank National Ass’n, 211 So. 3d 1009
(Fla. 2016). In that case, the court held that because the effect of an
involuntary dismissal of a foreclosure action is revocation of the
acceleration, “the statute of limitations does not continue to run on the
amount due under the note and mortgage” regardless of the reason why
the dismissed foreclosure action was unsuccessful. Id. at 1012, 1020.
Pursuant to Bartram, the trial court’s ruling on the application of the
statute of limitations and repose was incorrect. Owner concedes error.

   2) Laches

    We next address the trial court’s application of the doctrine of laches in
reaching its conclusion that Avelo’s mortgage did not constitute a valid
lien against the property. “Laches is an omission to assert a right for an
unreasonable and unexplained length of time, under circumstances

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prejudicial to the adverse party.” Ticktin v. Kearin, 807 So. 2d 659, 663
(Fla. 3d DCA 2001). The party asserting the defense must establish legal
prejudice which “results when there is a loss or injury to a person who
relies on another person’s voluntary failure to exercise a legal right.” Pyne
v. Black, 650 So. 2d 1073, 1076 (Fla. 5th DCA 1995). Within the unique
context of mortgage foreclosure law, any delay by the mortgagee in
enforcing its rights generally acts to the property owner’s benefit in
permitting him or her to remain in the property and cannot amount to
legal prejudice. Florance v. Johnson, 366 So. 2d 527, 528 (Fla. 3d DCA
1979) (“Any delay in enforcing the mortgagee’s rights acted only to her
benefit in permitting her to remain in her home; plainly, there was no
showing of a detriment or disadvantage to the defendant occasioned by
that delay, which is indispens[a]ble to a finding of laches.”).

   An exception to this rule applies when the unreasonable delay is
coupled with unique circumstances. For example, in Travis Co. v. Mayes,
the plaintiff brought a mortgage foreclosure action against the defendant
twenty-five years after the mortgage was executed and seventeen years
after the date of the mortgage’s maturity. 36 So. 2d 264, 265–66 (Fla.
1948). At the time the foreclosure action was filed, the defendant had been
in possession of the property for fifteen years; had paid all taxes and
improvement liens on the property; and had made substantial repairs and
improvements to the property. Id. at 266. In holding that laches barred
the plaintiff’s foreclosure action, the court reasoned that “it would be
highly inequitable to permit the plaintiff to enforce its claim against
defendant.” Id. at 266–67. The court emphasized the fact that the
defendant “had paid taxes on the property for twenty-six years [and] had
restored it from a practically worthless asset to one of value.” Id. at 267.

    In the present case, we hold that the court erred in concluding that
laches barred enforcement of Avelo’s mortgage because Owner failed to
establish legal prejudice. Unlike the defendant in Travis who had been in
possession of the property for fifteen years, had paid all taxes and
improvement liens on the property, and had made substantial repairs and
improvements to the property, Owner possessed the subject property for
no more than two months at the time it filed its quiet title action.
Moreover, not only did Owner fail to present any summary judgment
evidence showing how or if it improved the property, but the trial court
itself did not make findings of prejudice in its final order. Rather, the court
based its decision to apply laches solely on Avelo’s delay in enforcing its
lien. This was clearly erroneous as “[d]elay alone in asserting a right does
not constitute laches.” Ticktin, 807 So. 2d at 663.



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   3) Compulsory Counterclaim

    Lastly, we address the trial court’s conclusion that because Avelo failed
to file a foreclosure action as a compulsory counterclaim to Owner’s quiet
title action, Avelo was forever barred from enforcing its mortgage. Without
addressing whether a foreclosure action is in fact a compulsory
counterclaim to a quiet title action, we hold that the court’s ultimate
conclusion that Avelo’s failure to file such a counterclaim barred any
future foreclosure action was incorrect for two reasons.

   First, because “[a] new default, based on a different act or date of
default not alleged in [a] dismissed [foreclosure] action, creates a new
cause of action,” Avelo’s failure to file a foreclosure action as a
counterclaim could not legally serve to bar a future foreclosure action
predicated upon a future period of default which has not yet occurred. Star
Funding Sols., LLC v. Krondes, 101 So. 3d 403, 403 (Fla. 4th DCA 2012).
This is because “[a] counterclaim that has not accrued is not mature, so
that it is not a compulsory counterclaim within the meaning of rule
1.170(a).” Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot,
P.A., 807 So. 2d 669, 672 (Fla. 4th DCA 2001).

   Second, even if Avelo’s failure to file a foreclosure action as a
counterclaim barred it from bringing a future foreclosure action, Avelo’s
mortgage nonetheless remained a valid lien against the property.
See Countrywide Home Loans, Inc. v. Burnette, 177 So. 3d 1032, 1034 (Fla.
1st DCA 2015) (“Even if the statute of limitations has run on an action to
enforce a promissory note and foreclose on a mortgage, the lien against
the property remains valid until five years after the maturity date of the
debt secured by the mortgage.”); see also Deutsche Bank Tr. Co. v. Ams. v.
Beauvais, 188 So. 3d 938, 953 (Fla. 3d DCA 2016) (holding that the trial
court erred in declaring the mortgage null and void and quieting title to
the property as the mortgage lien remained valid until the expiration of the
statute of repose); Rodriguez v. Bank of Am., N.A., 49 F. Supp. 3d 1154,
1158–59 (S.D. Fla. 2014) (applying Florida law and holding that because
the statute of repose had not expired, the mortgage lien remained a valid,
enforceable cloud on mortgagor’s title, thus precluding a quiet title action).

    In conclusion, the trial court erred in quieting title in favor of Owner
and declaring Avelo’s mortgage null and void as the mortgage remained a
valid, enforceable lien on the subject property. Accordingly, we reverse the
summary judgment entered in favor of Owner on its quiet title action and
remand for entry of summary judgment in favor of Avelo on its declaratory
relief action.


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  Reversed and remanded.

KUNTZ, J., and FAHNESTOCK, FABIENNE, Associate Judge, concur.

                          *        *        *

  Not final until disposition of timely filed motion for rehearing.




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