FLORIDA’S FIFTH DCA CONCLUDES THAT THE 5-YEAR STATUTE OF LIMITATIONS DOES NOT BAR A MORTGAGE REFORMATION CLAIM
Florida’s Fifth DCA reversed an order which granted summary judgment on Carrington Mortgage Services’ (“Carrington”) claim for foreclosure but, based on the 5-year statute of limitations, denied Carrington’s claim to reform the legal description in the mortgage to “include a metes and bounds legal description” of the property. Carrington Mortg. Servs., LLC v. Tessenear, No. 5D2025-1687, 2026 Fla. App. LEXIS 6226, at *1 (Fla. 5th DCA Aug. 14, 2026).
Relying on the Second DCA’s reasoning in Corinthian Invest. v. Reederi, the Fifth DCA distinguished a claim to enforce a written instrument from a claim to reform a written instrument, explaining that the equitable purpose of the latter is to change the legal instrument to “express the real agreement and intention of the parties” not to enforce the instrument.ii The Court relied on this unique distinction to conclude that Carrington’s reformation claim was not subject to the five-year statute of limitations.iii
Through this holding the Fifth DCA necessarily limited the definition of an “action on a contract, obligation, or liability founded on a written instrument” as used in § 95.11(2)(b), Fla. Stat., to those actions that seek to enforce the written instrument rather than change the terms of a written instrument. See Hogg v. Vills. of Bloomingdale I Homeowners Ass'niv, 357 So. 3d 1271, 1275 (Fla. 2d DCA 2023), where the Second DCA rejected this conclusion and explained that its finding in Corinthian Investments was non-binding dicta:
Our court's opinion in Corinthian, 555 So. 2d at 874, did state that section 95.11(2)(b) ‘appears to connote an action to enforce a contract’ as opposed to an equitable action to ‘change the stated terms of a contract,’ that offhanded remark must be understood as dicta.
Although the Fifth’s interpretation of § 95.11(2)(b) is a welcome development given the frequent need to fix clerical errors in mortgages, we anticipate the conflict between the Second and Fifth DCAs will lead to additional litigation on the issue. Unless or until the Florida Supreme Court accepts jurisdiction to resolve the inter-district conflict, whether the five-year statute of limitations applies to a reformation claim will depend on where the claim is filed. Stay tuned.
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Florida’s Fifth DCA reversed an order which granted summary judgment on Carrington Mortgage Services’ (“Carrington”) claim for foreclosure but, based on the 5-year statute of limitations, denied Carrington’s claim to reform the legal description in the mortgage to “include a metes and bounds legal description” of the property. Carrington Mortg. Servs., LLC v. Tessenear, No. 5D2025-1687, 2026 Fla. App. LEXIS 6226, at *1 (Fla. 5th DCA Aug. 14, 2026).
Relying on the Second DCA’s reasoning in Corinthian Invest. v. Reeder, the Fifth DCA found that the five-year statute of limitations to bring an “action on a contract, obligation, or liability founded on a written instrument” did not apply to a claim to reform a mortgage. The Court explained that the equitable purpose of reforming is to change the legal instrument to “express the real agreement and intention of the parties” not to enforce the instrument.
Although the Fifth’s interpretation of § 95.11(2)(b) is a welcome development given the frequent need to fix clerical errors in mortgages, we anticipate the conflict between the Second and Fifth DCAs will lead to additional litigation on the issue. Unless or until the Florida Supreme Court accepts jurisdiction to resolve the inter district conflict, whether the five-year statute of limitations applies to a reformation claim will depend on where the claim is filed.
iCorinthian Invest. v. Reeder, 555 So. 2d 871, 875 (Fla. 2d DCA 1989).
ii Tessenear, at *2.
iii Tessenear, at *3.
iv Hogg v. Vills. of Bloomingdale I Homeowners Ass'n, 357 So. 3d 1271, 1275 (Fla. 2d DCA 2023).
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