USX CORPORATION, F/K/A UNITED STATES STEEL CORP., APPELLANT,
v.
WALTER H. SCHILBE AND LOYAL L. SCHILBE, APPELLEES

Fla. 2d DCA | 1989-01-06
No. 88-769
SCHEB, A.C.J., and SCHOONOVER, J., concur.
535 So. 2d 719 Florida District Court of Appeal, Second District (1989) Positive Treatment
Cited by 4 cases

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Holding

The court held that the automatic bankruptcy stay does not toll the statutory period for foreclosing a mortgage or enforcing a mortgage lien.

Facts & Procedural History

The Schilbes initiated an action to recover on a promissory note and foreclose a mortgage. The claims were barred by Florida law unless an intervening…

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Topics
Automatic Stay (11 U.S.C. § 362) Statute Of Repose Action On Promissory Note Tolling Of Statute Of Limitations

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

The Schilbes initiated an action seeking to recover on a promissory note and to foreclose a mortgage. It is evident from the record that the claims are barred by Florida’s law unless an intervening bankruptcy proceeding had an over-riding effect.

The timeliness of an action to foreclose a mortgage is controlled by section 95.-ll(2)(c), Florida Statutes (1987), and the duration of the lien created by such mortgage is governed by section 95.281, Florida Statutes (1987), a statute of repose. Our recent decision in Swartzman v. Harlan, 535 So. 2d 605 (Fla. 2d DCA 1988), is applicable to the instant proceeding in spite of the factual difference that in Swartzman the limitations statute barred the enforceability of a promissory note. § 95.11(2)(b), Fla.Stat. (1987). Swartzman rejected the contention that the automatic bankruptcy stay provided in 11 U.S.C. § 108(c)(1) (1978) tolled the statutory period for pursuing the claim. We find no logic capable of supporting the non-applicability of Swartzman to the matter before us. Thus, whether we view the Schilbes’ proceeding to have as its objective the foreclosure of the mortgage they held or the foreclosure of their resulting lien, the result is the same. That is to say, foreclosure of the mortgage is time barred by section 95.11(2)(c) and the enforceable life of the mortgage lien ended by operation of section 95.281 prior to the commencement of their action.

We note that none of the tolling grounds contained in section 95.051 is involved in the present matter because of the express exception from that statute of section 95.-281. Moreover, as was noted in Swartz-man, section 95.051 does not include the pendency of a bankruptcy action as a ground tolling the limiting periods not excepted from that statute.

We reverse and vacate the trial court’s final judgment and remand for the entry of an order dismissing the Schilbes’ complaint.

SCHEB, A.C.J., and SCHOONOVER, J., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Houck Corp. v. NEW River, Ltd., 900 So. 2d 601 (Fla. 2d DCA 2005)
    …both a statute of limitations governing actions to foreclose a mortgage and a statute of repose governing the enforceable life of the mortgage lien. Our determination on this issue is also supported by our earlier decision in USX Corp. v. Schilbe, 535 So. 2d 719 (Fla. 2d DCA 1989). There, the court held that “[t]he timeliness of an action to foreclose a mortgage is controlled by section 95.11(2)(c), Florida Statutes (1987), and the duration of the lien created by such mortgage is governed by section 95.281,…
  • WRH Mortg., Inc. v. Butler, 684 So. 2d 325 (Fla. 5th DCA 1996)
    …la. 3d DCA 1989), dismissed, 558 So. 2d 20 (FIa.1990) (under section 95.281, the lien of a mortgage terminates five years after the date of maturity where the final maturity of the obligation is ascertainable from the record); USX Corp., v. Schilbe, 535 So. 2d 719 (Fla. 2d DCA 1989)(the timeliness of an action to foreclose a mortgage is controlled by section 95.11 and the duration of the lien created by such mortgage is governed by section 95.281, a statute of repose). Cf. Monte v. Tipton, 612 So. 2d 714 (Fla…

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