CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 1980 Fla. App. LEXIS 15789
1A of Larson's Workmen's Compensation Law, Section 45.32. 2) The musicians are engaged in a distinct
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2014 WL 3608886, 2014 Fla. App. LEXIS 11199
...ty purchasers such
as Nocari are not entitled to control or direct surplus funds; the Pinedas also moved
for an order disbursing the funds to themselves. The Pinedas contended they had
priority in the distribution of the surplus funds pursuant to section 45.032(2),
Florida Statutes (2013). Section 45.032(2) reads, in relevant part, “There is
established a rebuttable legal presumption that the owner of record on the date of
the filing of a lis pendens is the person entitled to surplus funds after payment of
subordinate lienholders...
...the buyer so that the
buyer would use the proceeds to reduce the amount due on a superior lien.
Because the issue before this court is purely a question of law, our review is de
novo. See Armstrong v. Harris,
773 So. 2d 7, 11 (Fla. 2000).
Section
45.032(2) of the Florida Statutes creates a rebuttable presumption
that the owner of record receives all “surplus funds after payment of subordinate
lienholders who have timely filed a claim.” Section
45.032(1)(a), Florida Statutes
(2013), defines the “owner of record” as the person who appears to be the owner of
the property “that is the subject of the foreclosure proceeding on the date of the
filing of the lis pendens.” While the statutory presumption is “rebuttable,” section
45.032(2) expressly delineates the circumstances under which the presumption
may be rebutted, i.e., where the owner has assigned such surplus funds rights to an
assignee pursuant to section
45.033(2)(a), Florida Statutes (2013), a situation
which does not appear to exist in this case.1
1 Obviously, however, on remand, Nocari is not foreclosed from attempting to
establish a statutory entitlement to the surplus if it can meet the applicable
requirements of section
45.032.
6
Nocari has cited no case supporting its position that it is entitled to the
surplus, stating instead that the case law upon which it relies “is silent with respect
to the release...
...f surplus
foreclosure sale proceeds provides a mechanism authorizing a third-party
purchaser to obtain the surplus. The statute is clear: the owner of record at the
time of the recording of the lis pendens is entitled to any surplus proceeds. See §
45.032(1)(a), Fla. Stat. The Notice of Lis Pendens,2 recorded September 9, 2009,
reflects the Pinedas owned the subject property. Nocari was neither an “owner of
record,” an assignee of an owner, nor “subordinate lienholder,” see §§
45.032(1)(a), (b); §
45.033(2), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2009 WL 690661
...National Recovery intervened in the foreclosure lawsuit and obtained an order on May 29, 2007 that disbursed Ronald's 50% of the surplus proceeds. Tracy's portion of the surplus proceeds continued to be held by the clerk. On August 22, 2007, pursuant to section 45.032(3)(c), the clerk appointed Homeworks Recovery Services, LLC as a surplus trustee for the remaining surplus funds....
...The clerk properly appointed Homeworks as a surplus trustee under the statute. If no claim for a surplus is filed during the 60 days after the clerk issues a certificate of disbursements, the clerk "shall appoint a surplus trustee from a list of qualified surplus trustees as authorized in s. 45.034." § 45.032(3)(c), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2007 WL 2188690
...National Equity Recovery Services, Inc. ("NERS") petitions for a writ of certiorari. We treat the petition as a plenary appeal [1] , and find that the trial court erred in entering the disbursement Order without first holding an evidentiary hearing pursuant to Section 45.032, Florida Statutes (2006)....
...e foreclosure sale. [2] On that same date, Williams received from NERS a check in the amount of $1,000 as required by the Assignment Agreement. On April 9, 2007, NERS filed a Motion for Order Directing Clerk to *979 Release Excess Funds, pursuant to section 45.032, Florida Statutes (2006), seeking an order from the trial court directing the Clerk to disburse all surplus funds in the court registry to it....
...unds. [3] On that same day, the trial court entered an Order Granting Issuance of Surplus Funds to Defendant, Frances Williams (the "Order"), and a check in the amount of $43,623.20 was issued to Williams. [4] NERS petitions for review of the Order. Section 45.032, Florida Statutes (2006), entitled Disbursement of Surplus Funds After Judicial Sale, reads, in relevant part: (2) There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens...
...Because the trial court's order disbursing the surplus funds to Williams was made without conducting an evidentiary hearing concerning NERS's claim to the funds, the order is reversed and the case is remanded to the trial court to conduct an evidentiary hearing pursuant to sections 45.032-.033, Florida Statutes (2006)....
CopyCited 1 times | Published | Supreme Court of Florida
certificate of title." §
45.031(7)(a), Fla. Stat. Section
45.032(3), Florida Statutes (2015)-which neither
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2012 WL 5933055, 2012 Fla. App. LEXIS 20336
...y or his ownership rights, there was nothing for the lower court to consider once this judgment became final. 5 See §
45.031, Fla. Stat. (2012) (governing judicial sales procedure); §
45.0315, Fla. Stat. (2012) (governing the right of redemption); §
45.032, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 WL 1088400
...ted pursuant to ss. 43.19,” further supports our conclusion. See §
717.124(8), Fla. Stat. (2013); ch. 2013-34, § 1, Laws of Fla. This amendment aligns the handling of unclaimed funds under section 43.19 with the handling of unclaimed funds under section
45.032, Florida Statutes (2010); that is, regardless of whether the funds are determined to be unclaimed under section 43.19 *373 or section
45.032, chapter 717 governs the procedures by which the funds deposited with the CFO are to be claimed and disbursed. This court has previously determined that where funds were deposited with the CFO pursuant to section
45.032, “[a]rticle 4, section 4(c) of the Florida Constitution vests the CFO with exclusive authority to examine and approve all claims for unclaimed funds under chapter 717.” Atwater v. City of Cape Coral,
120 So.3d 595, 599 (Fla. 2d DCA 2013). Section
45.032(4) provides that “the clerk [of....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2017 WL 2730090, 2017 Fla. App. LEXIS 9126
...were alleged to be inferior to FNMA’s
mortgage. The trial court granted Luzupozo’s request and ordered the clerk to disburse
the surplus funds to pay off the liens detailed in Luzupozo’s motion. The Rodriguezes
and NERS now appeal.
Section 45.032, Florida Statutes (2016), creates a rebuttable presumption that the
owner of record is entitled to receive all “surplus funds after the payment of subordinate
lienholders who have timely filed a claim.” Section 45.032(1)(a) defines the “owner of
record” as the person who appears to be the owner of the property “that is the subject of
the foreclosure proceedings on the date of the filing of the lis pendens.” “Subordinate
lienholder” is defined to mean “the holder of a subordinate lien shown on the face of the
pleadings as an encumbrance on the property.” Id. § 45.032(1)(b)....
...If, as here, the owner of record claims the surplus during
the sixty-day period, and there are no subordinate lienholders, the court is to order the
2
clerk to pay the surplus to the owner of record after the payment of any applicable service
charges. See § 45.032(3)(a), Fla....
...Wells Fargo Bank, N.A.,
143 So. 3d 1008, 1011 (Fla. 3d DCA 2014). The statute governing the distribution of
surplus foreclosure sale proceeds does not provide a mechanism authorizing a third-party
purchaser to obtain the surplus or its benefits. See §
45.032(1)(a), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 WL 3449645
...ent appropriation for payments by the Chief Financial Officer of the state in obedience of such orders. But transferring the funds pursuant to section 43.19 was in error. The surplus funds were the result of judicial foreclosure sales, and therefore section 45.032, Florida Statutes (2008), is the applicable statute. • Section 45.032 In 2006, the legislature revised the provisions of chapter 45 and created section 45.032 to provide for disbursement of surplus funds after a judicial foreclosure sale....
...nt of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section and ss.
45.0315-45.035.”). See generally The Florida Bar, Creditors’ and Debtors’ Practice in Florida § 3.69 (2007). Section
45.032 became effective July 1, 2006. Establish *598 ing the proper procedures for the clerk, the court, and any person claiming a legal right to the surplus to follow, section
45.032 provides in pertinent part: (3) During the 60 days after the clerk issues a certificate of disbursements, the clerk shall hold the surplus pending a court order....
...Thirty days after termination of the appointment of the surplus trustee, the clerk shall treat the remaining funds as unclaimed property to be deposited with the Chief Financial Officer pursuant to chapter 717. Nothing in the record indicates that a surplus trustee was appointed or that the procedures set forth in section
45.032 were otherwise followed. • Retrospective Application of Procedural Statutes Because section
45.032 was enacted after the foreclosure sales resulting in the surplus proceeds 4 but prior to the transfers, we must determine retroactivity. Compare Town of Lake Park v. Grimes,
963 So.2d 940 (Fla. 4th DCA 2007) (applying the preamendment procedures to the cases because all of the events took place prior to the amendment creating section
45.032), with Suarez v. Edgehill,
20 So.3d 410, 412 (Fla. 3d DCA 2009) (explaining that because the events took place after July 1, 2006, the case was controlled by section
45.032). “A procedural statute is ‘to be applied retrospectively’ and is ‘to be applied to pending cases.’ ” Mortimer v. State,
100 So.3d 99, 103 (Fla. 4th DCA 2012) (quoting Alamo Rent-A-Car, Inc. v. Mancusi,
632 So.2d 1352, 1358 (Fla.1994)). Section
45.032 is procedural in nature....
...funds to the former property owner after a judicial foreclosure sale). When the amendment took effect on July 1, 2006, the funds were in the court registry. 5 After the amendment’s effective date, the funds were transferred to the CFO. Therefore, section 45.032 governed the disposition of the surplus funds even though the events that generated them occurred before the effective date *599 of the statute....
...to events that occurred before the effective date of the statute did not violate the prohibition against applying laws ex post facto). Additionally, because the two statutes seemingly covered the same subject matter, the more specific provisions of section 45.032, rather than the more general provisions of section 43.19, applied to the pending surplus funds....
...2d DCA 2005) (“[I]n construing conflicting statutes, a specific statute covering a particular subject area controls over a statute covering the same and other subjects in more general terms.”). • Surplus Funds Become Unclaimed Property Had the circuit court and the clerk applied section 45.032 retrospectively after it took effect in 2006, a surplus trustee would have been appointed after no one claimed the funds. See § 45.032(3)(c)....
...If the surplus trustee had been unable to locate the owner of the surplus within a year, “the clerk [would have] treat[ed] the remaining funds as unclaimed property to be deposited with the Chief Financial Officer pursuant to chapter 717.” See § 45.032(4)....
...The courts, acting under the authority of section 43.19(3), granted the motions and issued the orders. These acts were beyond the courts’ authority. Once the funds were transferred to the CFO, albeit under the wrong statute, the correct and applicable provisions of section 45.032 provided that the surplus funds became unclaimed property controlled by chapter 717, which vests the CFO and the Department alone with the authority to make the final determination as to the disposition of the unclaimed surplus funds....
...arently were driven by the company’s attempt to sidestep the fee structure cap for claimant’s representatives like NERS. 6 Based on prior court proceedings, NERS, at least *601 in its corporate capacity, was aware of the procedures delineated in section 45.032 yet did not bring this to the courts’ attention....
CopyPublished | Florida 4th District Court of Appeal
...a lower instrument number than the foreclosing plaintiff’s mortgage.
Thus, Ryan & Rick’s mortgage was superior to the foreclosing plaintiff’s
mortgage.
As a superior lienholder, Ryan & Rick was not entitled to surplus funds
following the foreclosure sale. Section 45.032, governing “[d]isbursement
of surplus funds after judicial sale,” states that “[t]here is established a
rebuttable legal presumption that the owner of record on the date of the
filing of a lis pendens is the person entitled to surplus funds after payment
of subordinate lienholders who have timely filed a claim.” § 45.032(2), Fla.
Stat....
...A “subordinate lienholder” is defined as “the holder of a
subordinate lien shown on the face of the pleadings as an encumbrance
on the property. . . . A subordinate lienholder includes, but is not limited
to, a subordinate mortgage, judgment, tax warrant, assessment lien, or
construction lien.” § 45.032(1)(b), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 15558, 2009 WL 3271350
...Ch. 2006-175 §§ 1-5, Laws of Fla. The amended statute defines an "Owner of record" as "the person or persons who appear to be owners of the property that is the subject of the foreclosure proceeding on the date of the filing of the lis pendens." § 45.032(1)(a), Fla....
...Stat. (2008) (emphasis added). There is "a rebuttable legal presumption that the owner of record on the date of the filing of the lis pendens is entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim." Id. § 45.032(2)....
...us. We do not agree. The statute specifically saystwice that the legislature is abrogating "the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale." Id. §§
45.032(2),
45.033(1)....
...Instead the language refers to "an involuntary transfer or assignment of the right to collect the surplus." (Emphasis added). Under the statute, the relevant date for determining the "owner of record" is the date of the filing of the lis pendens, id. § 45.032(1)(a), and the question in the present case is whether there has been an involuntary transfer of that right....
...4th DCA 2007), has application to this case. That case involved the question of whether a subordinate lienor was entitled to receive the surplus from a foreclosure sale, which is not the issue here. In the present case, all subordinate liens were paid. See § 45.032(1)(b), (c), Fla....
CopyPublished | Florida 4th District Court of Appeal
...The final judgment
facially indicated that a copy was furnished to the subordinate lienholder
at the address upon which it was served with process.
After the sale was rescheduled, the clerk published a re-notice of sale
containing the following statement in conspicuous type as required by
section
45.032(2)(f), Florida Statutes (2012):
ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS
FROM THE SALE, IF ANY, OTHER THAN THE PROPERTY
OWNER AS OF THE DATE OF THE LIS PENDENS MUST FILE
A CLAIM WITHIN 60 DAYS AFTER THE SALE.
§
45.031(2)(f), Fla....
...wners filed a
claim to the surplus. In the claim, the homeowners alleged in pertinent
part: “All lienholders with valid and timely claims for the surplus have
been paid. The [homeowners] have priority in the distribution of the
surplus pursuant to § 45.032(2), Fla. Stat.” (emphasis added). Section
45.032(2), Florida Statutes (2012), states:
There is established a rebuttable legal presumption that the
owner of record on the date of the filing of a lis pendens is the
person entitled to surplus after payment of subordinate
lienholders who have timely filed a claim.
§ 45.032(2), Fla....
...homeowners “should not be permitted an inequitable windfall simply
because [the subordinate lienholder] missed the 60-day deadline by a few
weeks.”
In response, the homeowners argued that the subordinate lienholder
failed to file a timely claim under sections
45.031(1)(a) and
45.032(2)(f) as
quoted above, and that no extension of time is permitted....
...er claiming a
right to surplus to file a claim no later than (or within) 60 days after the
sale, and warns that if the subordinate lienholder fails to file a timely
claim, then the subordinate lienholder will not be entitled to any surplus.
Further, section
45.032(2)’s plain language quoted above establishes a
rebuttable legal presumption that the owner is entitled to surplus after
payment of subordinate lienholders who have timely filed a claim.
Here, it is undisputed that the subordinate lienholder did not timely file
its claim. Thus, according to section
45.031(1)(a)’s and section
45.032(2)’s
plain language, the homeowners, and not the subordinate lienholder, are
entitled to the surplus....
...e a claim for the
surplus within sixty days after the sale); Mathews,
139 So. 3d at 500-01
(same).
In its answer brief, the subordinate lienholder seeks affirmance of the
circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
... and (3) the homeowners’ claim did not acknowledge that the subordinate
lienholder may have a claim to the surplus, and if the homeowners’ claim
had acknowledged such a claim, then the court would have held an
evidentiary hearing on the entitlement to the surplus. See § 45.032(3)(b),
Fla....
...owner of record
files a claim for the surplus but acknowledges that one or more other persons
may be entitled to part or all of the surplus . . . .”) (emphasis added).
The subordinate lienholder’s first argument – that sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
...The statutes which contain the sixty-day time limit control here.
The subordinate lienholder’s second argument – that its untimely claim
should be excused because it did not receive a copy of the final judgment
or certificate of disbursements – lacks merit for three reasons. First,
sections
45.031 and
45.032 do not contain any provision permitting a
court to excuse a subordinate lienholder’s untimely claim on the ground
that it did not receive actual notice....
...had a claim to the surplus, the subordinate lienholder would not be
entitled to recover on its claim because it also filed its claim after the sixty-
day period. Thus, an evidentiary hearing was not required. See Dever,
147 So. 2d at 1048 (“[S]ection 45.032(3)(b), read in the context of the
surrounding statutory sections, clearly indicates that a hearing must be
held where any subordinate lienholders have been brought to the clerk’s
attention during the sixty-day period – either where the sub...
CopyPublished | Florida 4th District Court of Appeal
...surplus until the dispute was resolved, even though no action had been
filed in any other jurisdiction. We grant the petition, concluding that the
court departed from the essential requirements of law by staying the action
until resolution of the dispute, when section 45.032, Florida Statutes
(2021), required the trial court to determine any claims to the surplus
proceeds.
After final summary judgment in the underlying mortgage foreclosure
case, the property was sold at auction and a certificate of title issued....
...d for years.
We also find that the trial court departed from the essential
requirements of law. Petitioner sought the disbursement of the surplus
funds from the judicial sale held by the Broward County Clerk in the
underlying foreclosure action. Section 45.032(3), Florida Statutes (2021),
provides:
(b) If any person other than the owner of record claims an
interest in the proceeds prior to the date that the clerk reports
the surplus as unclaimed or if the owner of record f...
...45.033 when hearing
a claim that any person other than a subordinate lienholder or
the owner of record is entitled to the surplus funds.
(Emphasis added.). Section
45.033(3) sets forth the requirements to
qualify under the section as a valid assignment or transfer.
Based on section
45.032(3)(b), the trial court was required to hold an
evidentiary hearing on the competing motions to release the surplus funds.
Courts are not free to deviate from the clear statutory process set forth for
the “distribution of surplus fore...
...3d 380, 383–84 (Fla. 2d DCA 2020). The trial court by
statute had jurisdiction to determine the competing claims.
We conclude that the trial court departed from the essential
requirements of the law by failing to follow the statutory mandate of
section 45.032(3)(b) and by ordering a stay of the proceedings while the
parties litigated the assignment and the right to the funds in another
forum....
CopyPublished | District Court of Appeal of Florida
105(7) cannot apply to authorize an award of section
45.032, Florida Statutes (2019)). In contrast, absent
CopyPublished | Florida 4th District Court of Appeal
...The final judgment
facially indicated that a copy was furnished to the subordinate lienholder
at the address upon which it was served with process.
After the sale was rescheduled, the clerk published a re-notice of sale
containing the following statement in conspicuous type as required by
section
45.032(2)(f), Florida Statutes (2012):
ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS
FROM THE SALE, IF ANY, OTHER THAN THE PROPERTY
OWNER AS OF THE DATE OF THE LIS PENDENS MUST FILE
A CLAIM WITHIN 60 DAYS AFTER THE SALE.
§
45.031(2)(f), Fla....
...wners filed a
claim to the surplus. In the claim, the homeowners alleged in pertinent
part: “All lienholders with valid and timely claims for the surplus have
been paid. The [homeowners] have priority in the distribution of the
surplus pursuant to § 45.032(2), Fla. Stat.” (emphasis added). Section
45.032(2), Florida Statutes (2012), states:
2
There is established a rebuttable legal presumption that the
owner of record on the date of the filing of a lis pendens is the
person entitled to surplus after payment of subordinate
lienholders who have timely filed a claim.
§ 45.032(2), Fla....
...homeowners “should not be permitted an inequitable windfall simply
because [the subordinate lienholder] missed the 60-day deadline by a few
weeks.”
In response, the homeowners argued that the subordinate lienholder
failed to file a timely claim under sections
45.031(1)(a) and
45.032(2)(f) as
quoted above, and that no extension of time is permitted....
...er claiming a
right to surplus to file a claim no later than (or within) 60 days after the
sale, and warns that if the subordinate lienholder fails to file a timely
claim, then the subordinate lienholder will not be entitled to any surplus.
Further, section
45.032(2)’s plain language quoted above establishes a
rebuttable legal presumption that the owner is entitled to surplus after
payment of subordinate lienholders who have timely filed a claim.
Here, it is undisputed that the subordinate lienholder did not timely file
its claim. Thus, according to section
45.031(1)(a)’s and section
45.032(2)’s
plain language, the homeowners, and not the subordinate lienholder, are
entitled to the surplus....
...e a claim for the
surplus within sixty days after the sale); Mathews,
139 So. 3d at 500-01
(same).
In its answer brief, the subordinate lienholder seeks affirmance of the
circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
...and (3) the homeowners’ claim did not acknowledge that the subordinate
lienholder may have a claim to the surplus, and if the homeowners’ claim
had acknowledged such a claim, then the court would have held an
evidentiary hearing on the entitlement to the surplus. See § 45.032(3)(b),
Fla....
...owner of record
files a claim for the surplus but acknowledges that one or more other persons
may be entitled to part or all of the surplus . . . .”) (emphasis added).
The subordinate lienholder’s first argument – that sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
...The statutes which contain the sixty-day time limit control here.
The subordinate lienholder’s second argument – that its untimely claim
should be excused because it did not receive a copy of the final judgment
or certificate of disbursements – lacks merit for three reasons. First,
sections
45.031 and
45.032 do not contain any provision permitting a
court to excuse a subordinate lienholder’s untimely claim on the ground
that it did not receive actual notice....
...had a claim to the surplus, the subordinate lienholder would not be
entitled to recover on its claim because it also filed its claim after the sixty-
day period. Thus, an evidentiary hearing was not required. See Dever,
147 So. 2d at 1048 (“[S]ection 45.032(3)(b), read in the context of the
surrounding statutory sections, clearly indicates that a hearing must be
held where any subordinate lienholders have been brought to the clerk’s
attention during the sixty-day period – either where the sub...
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 4274, 2015 WL 1334317
...The final judgment facially indicated that a copy was furnished to the subordinate lienholder at the address upon which it was served with process. After the sale was rescheduled, the clerk published a re-notice of sale containing the following statement in conspicuous type as required by section 45.032(2)(f), Florida Statutes (2012): ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS FROM THE SALE, IF ANY, OTHER THAN THE PROPERTY OWNER AS OF THE DATE OF THE LIS PENDENS MUST FILE A CLAIM WITHIN 60 DAYS AFTER THE SALE....
...More than sixty days after the foreclosure sale, the homeowners filed a claim to the surplus. In the claim, the homeowners > alleged in pertinent part: “All lienholders with valid and timely claims for the surplus have been paid. The [homeowners] have priority in the distribution of the surplus pursuant to § 45.032(2), Fla. Stat.” (emphasis added). Section 45.032(2), Florida Statutes (2012), states: There is established a rebuttable legal presumption that the owner of record on - the date of the filing of a lis pendens is the person entitled to surplus after payment- of subordinate lienholders who have timely filed a claim. § 45.032(2), Fla....
...an inequitable windfall simply because [the subordinate lienholder] missed the 60-day deadline by a few weeks.” *856 In response, the homeowners argued that the subordinate lienholder failed to file a timely claim - under sections
45.031(l)(a) and
45.032(2)(f) as quoted above, and that no extension of time is permitted....
...er claiming a right to surplus to file a claim no later than (or within) 60 days after the sale, and warns that if the subordinate lienholder fails to file.a timely claim, then the subordinate lienholder will not be entitled to any surplus. Further, section
45.032(2)’s plain language quoted above establishes a re-buttable legal presumption that the owner is entitled to surplus after payment of subordinate lienholders who have timely filed a claim. Here, it is undisputed that the subordinate lienholder did not timely file its claim. Thus, according to section
45.031(l)(a)’s and section
45.032(2)’s plain language, the homeowners, and not the subordinate lienholder, are entitled to the surplus....
...o file a claim for the surplus within sixty days after the sale); Mathews,
139 So.3d at 500-01 (same). In its answer brief, the subordinate lien-holder seeks affirmance of the circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate lienholders’ claims to the surplus, pursuant to DeMario v....
...’ claim did not acknowledge that the subordinate lienholder may have a claim to the surplus, and if the homeowners’ claim had acknowledged such a claim, then the court would have held an evidentiary hearing on the entitlement to the surplus. See § 45.032(3)(b), Fla....
...period or if the aimer of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus (emphasis added). The subordinate lienholder’s first argument — that sections
46.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate lienholders’ claims to the surplus, pursuant to DeMario v....
...The statutes which contain the sixty-day time limit control here. The subordinate lienholder’s second argument — that its untimely claim should be excused because it did not receive a copy of the final judgment or certificate of disbursements — lacks merit for three reasons. First, sections
45.031 and
45.032 do not contain any provision permitting a court to excuse a subordinate lienholder’s untimely claim on the ground that it did not receive actual notice....
...a claim to the surplus, the subordinate lien-holder would not be entitled to recover on its claim because it also filed its claim after the sixty-day period. Thus, an evidentiary hearing was .not required. See Dever,
147 So.3d at 1048 (“[S]ection
45.032(3)(b); read in the context of the surrounding statutory section?, clearly indicates that a hearing must be held where any subordinate lien-holders have been brought, to the clerk’s attention during the sixty-day period— either where the su...
...The final judgment facially indicated that a copy was furnished to the subordinate lienholder at the address upon which it was served with process. , After the sale was rescheduled, the clerk published a re-notice of sale containing the following statement in conspicuous type as required by section 45.032(2)(f), Florida Statutes (2012): ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS FROM THE SALE, IF ANY, OTHER THAN....
...' More than sixty days after the foreclosure sale, the homeowners filed a claim to the surplus. In the claim, the homeowners alleged in pertinent part: “All lienholders with valid and timely claims for the surplus have been paid. The [homeowners] have priority in the distribution of the surplus pursuant to § 45.032(2), Fla. Stat.” (emphasis added). Section 45.032(2), Florida Statutes (2012), states: There.is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus after payment of subordinate lienholders who .have timely filed a claim. § 45.032(2), Fla....
...er claiming a right to surplus to file a claim no later than (or within) 60 days after the sale, and warns that if the subordinate lienholder fails to file a timely claim, then the subordinate lienholder will not be entitled to any surplus. Further, section
45.032(2)’s plain language quoted above establishes a re-buttable legal presumption that the owner is entitled to surplus after payment of subordinate lienholders who have timely filed a claim. Here, it is undisputed that the subordinate lienholder did not timely file its claim. Thus, according to section
45.031(l)(a)’s and section
45.032(2)’s plain language, the homeowners, and not the subordinate lienholder, are entitled to the surplus....
...o file a claim for the surplus within sixty days after the sale); Mathews,
139 So.3d at 500-01 (same). In its answer brief, the subordinate lien-holder seeks affirmance of the circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate lienholders’ claims to the surplus, pursuant to DeMario v....
...aim did not acknowledge that the subor *861 dinate lienholder may have a claim to the surplus, and if the homeowners’ claim had acknowledged such a claim, then the court would have held an evidentiary hearing on the entitlement to the surplus. See § 45.032(3)(b), Fla....
...riod or if the mmer of record files a claim for the■ surplus but acknowledges that one or more other persons may-be entitled to part or all of the surplus (emphasis added). The subordinate lienholder’s first argument — that sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate lienholders’ claims to the surplus, pursuant to DeMario v....
...The statutes which contain the sixty-day time limit control here. The subordinate lienholder’s second argument — that its untimely claim should be excused because it did not receive a copy of the final judgment or certificate of disbursements — lacks merit for three reasons. First, sections
45.031 and
45.032 do not contain any provision permitting a court to excuse a subordinate lienholder’s untimely claim on the ground that it did not receive actual notice....
...y have had a claim to the surplus, the subordinate lien-holder would not be entitled to recover on its claim because it also filed its claim after the sixty-day period. Thus, an evidentiary hearing was not required. See Dever,
147 So.3d at 1048 (“[Section
45.032(3)(b), read in the context of the surrounding, statutory sections, clearly indicates that a hearing must be held where any subordinate lien-holders have been brought to the clerk’s attention during the sivty-day period— either wher...
CopyPublished | Florida 3rd District Court of Appeal
...Eduartez appeal this order. 3 E. Surplus Trustee Petition and Resulting "Agreed" Order Several months later, on February 23, 2017, in an effort to disburse the remaining $8,938.00 in surplus proceeds being held by the clerk, 4 the clerk, pursuant to section 45.032(3)(c), appointed a surplus trustee to locate the property's owner of record....
...was, whether a trustee needed to be appointed, whether the trustee was entitled to a percentage of the proceeds, whether the proceeds had been assigned or transferred; and then to disburse the proceeds to different parties accordingly. See, e.g. , §§
45.032,
45.033, Fla....
...We nevertheless affirm the trial court's denial of Eduartez's rule 1.540 motion because the trial court's error in construing the relevant statutes rendered the September 6, 2016 disbursement order erroneous, but not void. Affirmed. Conflict certified. LOGUE and LINDSEY, JJ., concur. Section 45.032(1)(a) defines the term "owner of record" as the person appearing to own the property being foreclosed upon on the date of the filing of the lis pendens....
CopyPublished | Florida 3rd District Court of Appeal
...foreclosure sale (i.e., on or before August 20, 2016). Rather, on August 25, 2016,
sixty-five days after the foreclosure sale, the third-party purchaser, Degel, filed a
motion requesting the court to disburse $31,087.58 to Association.2 It was not until
1 Section 45.032(1)(a) defines the term “owner of record” as the person appearing
to own the property being foreclosed upon on the date of the filing of the lis
pendens....
...unpaid fees.
3While not relevant to our holding, it bears noting that Eduartez’s counsel filed an
affidavit asserting he never received a copy of the September 6, 2016 disbursement
order.
6
pursuant to section 45.032(3)(c), appointed a surplus trustee to locate the
property’s owner of record....
...s, whether a trustee needed to
be appointed, whether the trustee was entitled to a percentage of the proceeds,
whether the proceeds had been assigned or transferred; and then to disburse the
proceeds to different parties accordingly. See, e.g., §§
45.032,
45.033, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 259, 2016 WL 74988
...We affirm.
“There is established a rebuttable legal presumption that the owner of
record on the date of the filing of a lis pendens is the person entitled to
surplus funds after payment of subordinate lienholders who have timely
filed a claim.” § 45.032(2), Fla....
...Issuance of the certificate of title confirms the sale,
curing “all irregularities, misconduct and unfairness in the making of the
sale.” McClanahan v. Mayne,
138 So. 36, 38 (Fla. 1931); see also §
45.031(6), Fla. Stat. (2014). A subordinate lienholder’s claim to surplus
from the sale is timely under section
45.032(2) when it is filed no later
than sixty days after the clerk issues and files the certificate of title.
Accordingly, we affirm.
Affirmed.
4
GROSS and TAYLOR, JJ., concur....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 621258, 2017 Fla. App. LEXIS 2000
...“[D]istribution of surplus foreclosure proceeds is governed by a
plain and unambiguous statutory procedure which clearly provides that the owner
of record is entitled to the surplus proceeds.” Pineda v. Wells Fargo Bank, N.A.,
143 So. 3d 1008, 1011 (Fla. 3d DCA 2014); see §
45.032(2), Fla....
...s, and remand with instructions that the
improperly disbursed surplus funds be deposited back into the court registry, that
the court consider any appropriate motions for surplus funds, and for further
proceedings consistent with this opinion and section 45.032, Florida Statutes.
On cross-appeal, the third party purchasers seek review of the portion of the
trial court’s order denying their objections to the sale....
CopyPublished | Florida 2nd District Court of Appeal
...Section
45.031(7)(d), Florida Statutes
(2017), states, "If there are funds remaining after payment of all disbursements required
by the final judgment of foreclosure and shown on the certificate of disbursements, the
surplus shall be distributed as provided in this section and ss.
45.0315-45.035." Section
45.032(2) in turn provides:
There is established a rebuttable legal presumption
that the owner of record on the date of the filing of a lis
pendens is the person entitled to surplus funds after...
...Thus, having
determined that the Trust was the record owner of the property, the various other
circumstances recited by the circuit court were legally superfluous and insufficient to
overcome the Trust's entitlement to the surplus. The order contravened the plain and
unambiguous language of sections
45.032 and
45.033. See All Ctys. Surplus LLC v.
Flamingo S. Beach I Condo. Ass'n,
211 So. 3d 1096, 1097 (Fla. 3d DCA 2017)
(determining that the language of section
45.032 is plain and unambiguous).
Accordingly, we reverse the order under review....
CopyPublished | Florida 3rd District Court of Appeal
...their
respective motions for surplus funds. Because Marsdreamland was not the
“owner of record” when the lis pendens was filed, we affirm that portion of
the trial court’s order which denied Marsdreamland’s request for surplus
funds. See § 45.032(2), Fla....
...Stat. (“There is established a rebuttable legal
presumption that the owner of record on the date of the filing of a lis pendens
is the person entitled to surplus funds after payment of subordinate
lienholders who have timely filed a claim.”); § 45.032(1)(a), Fla....
...and thus was not entitled to any surplus funds.”) (footnote and citations
omitted).
We reverse, however, that portion of the order denying Catalina’s
request. As the only subordinate lienholder who had filed a claim, Catalina
is clearly entitled to the surplus funds. See § 45.032(2), Fla....
...Stat. (The
statute establishes a “rebuttable legal presumption that the owner of record
on the date of the filing of a lis pendens is the person entitled to surplus funds
after payment of subordinate lienholders who have timely filed a claim”); §
45.032(1)(b), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Treco (Plantation), for appellants.
William Wong, P.A., and William Wong, for appellee.
Before LINDSEY, HENDON, and LOBREE, JJ.
PER CURIAM.
ON MOTION FOR REHEARING
We grant rehearing, withdraw our prior opinion, and reverse and
remand for an evidentiary hearing pursuant to section 45.032, Florida
Statutes (2022). See § 45.032(3)(b) (“If any person other than the owner of
record claims an interest in the proceeds prior to the date that the clerk
reports the surplus as unclaimed or if the owner of record files a claim for the
surplus but acknowledges that one...
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 13259, 2014 WL 4212760
...k no later than sixty days after the sale. And
section
45.031(1)(a) specifically warns that if a subordinate lienholder fails to file a
claim, it will not be entitled to any remaining funds. Subsection (7)(b) reiterates this
requirement. Further, section
45.032(2) establishes a rebuttable presumption that the
owner of record is entitled to the surplus after any subordinate lienholders who timely
filed claims have been paid....
...Bank
National Ass'n,
929 So. 2d 651 (Fla. 4th DCA 2006); and other cases that were decided
before the effective date of the amendment are inapplicable here for the same reason.
We disagree with Wells Fargo's argument that the language found in
section
45.032(3)(b) undermines the clear language in section
45.031(7)(b). Section
45.032(3)(b) provides in relevant part:
-4-
If any person other than the owner of record claims an
interest in the proceeds during the 60-day period or if the...
...ds. But Wells Fargo has taken this
statutory language out of context.
Section
45.031 sets out the procedure for judicial sales and establishes
the sixty-day deadline for claims to any surplus, see §§
45.031(1)(a), (2)(f), (7)(b).
Section
45.032 then provides the procedure for the disbursement of surplus funds after
a judicial sale and establishes "a rebuttable legal presumption that the owner of record
on the date of the filing of a lis pendens is the person entitled to surplus funds after
payment of subordinate lienholders who have timely filed a claim," see §
45.032(2)
(emphasis added). Section
45.032(3) provides that the clerk shall hold the surplus for
sixty days after the certificate of disbursements is issued, pending a court order. If the
owner claims the surplus during the sixty-day period, the owner should acknowledge if
there are any subordinate lienholders who may have a right to the funds. §
45.032(3)(a). So section
45.032(3)(b), read in the context of the surrounding statutory
sections, clearly indicates that a hearing must be held where any subordinate
lienholders have been brought to the clerk's attention during the sixty-day period—either
where the subordinate lienholder files its own claim or the owner files a claim but
acknowledges the existence of the subordinate lienholder. Thus, section
45.032,
-5-
considered in its entirety and read in conjunction with section
45.031, undoubtedly
contemplates that all claims to the surplus be filed within the sixty days following the
sale an...
CopyPublished | Florida 3rd District Court of Appeal
...D. Wesoloski, for appellants.
McCalla Raymer Liebert Pierce, LLC, and Charles P. Gufford
(Orlando), for appellee.
Before FERNANDEZ, C.J., and EMAS and LOBREE, JJ.
PER CURIAM.
Affirmed. See §
45.031(1)(a),(7), Fla. Stat. (2014); §
45.032(1)(b), Fla.
Stat....
CopyPublished | Florida 1st District Court of Appeal
...s); §
717.115, Fla. Stat. (2013) (unpaid wages that have not been
claimed for more than one year are presumed “unclaimed”). The
Department also receives funds from Florida Clerks of Courts as
the result of various judicial processes. See, e.g., §
45.032, Fla.
Stat....
...o the funds to the
Department. Section
717.124(8) provides,
This section applies to all unclaimed property reported
and remitted to the Chief Financial Officer, including, but
not limited to, property reported pursuant to ss. 43.19,
45.032,
732.107,
733.816, and
744.534.
(Emphasis added.)
The plain statutory language is clear that only section
717.124
applies to section
732.107 funds....
...as provided in s.
717.124.
9
See also Atwater v. City of Cape Coral,
120 So. 3d 595, 599 (Fla. 2d
DCA 2013) (holding once surplus judicial funds were transferred
to the Chief Financial Officer, the provisions of section
45.032
provided that the surplus funds became unclaimed property
controlled by chapter 717, such that under section
717.1242 the
Chief Financial Officer and the Department alone had the
authority to make the final determination as to the disp...
...We do not disagree that the Department carries a
responsibility to ensure that funds are properly disbursed to the
rightful owner. Unlike the funds in City of Cape Coral, here there
is no explicit reference to chapter 717 in section
732.107. Compare
§
45.032(4), Fla....
