Florida/Georgia Personal Injury & Workers Compensation

...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 t...

...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....

...To decide the case, we must construe the provisions of sections 45.031-45.034, Florida Statutes (2007). We hold that the trial court did not abuse its discretion by dividing statutory fees between an assignee who did not comply with the time limits of section 45.033(3) and a surplus trustee properly appointed by the clerk....

...y be distributed. See § 45.034(6), Fla. Stat. (2007). The statute also allows for an assignment of the right to collect a surplus to an assignee that "is qualified as a surplus trustee, or could qualify as a surplus trustee, pursuant to s. 45.034." § 45.033(3)(d), Fla. Stat. (2007). The statute thus allows for assistance to an unsophisticated property owner in foreclosure, while capping the owner's exposure to fees and costs at twelve percent. See §§ 45.033(3)(e), 45.034(7), Fla....

...endens" in the case may claim the surplus. As Tracy did in this case, the statute allows an owner of record to assign her rights to a surplus and permits the assignee to secure release of the surplus from the clerk for distribution to the owner. See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment under *408 the statute must be "filed with the court on or before 60 days after the filing of the certificate of disbursements." § 45.033(3)(b), Fla. Stat. (2007). Here, National Recovery did not obtain or file an assignment from Tracy within the 60-day time frame. This triggered the application of section 45.033(5) which provides: If the court finds that a voluntary transfer or assignment does not qualify under subsection (3) but that the transfer or assignment was procured in good faith and with no intent to defraud the transferor or assignor...

...Tracy's assignment did not "qualify under subsection (3)" because it was untimely filed, so the decision to award fees to National Equity was discretionary ("the court may order the clerk to pay the claim of the ... assignee") (emphasis added) with the circuit judge. Where an assignment complies with section 45.033(3), the decision to award fees to the assignee is not discretionary; section 45.033(4) provides that the court "shall honor" an assignment that "complies with the requirements of subsection(3), in which case the court shall order the clerk to pay" the assignee from the surplus....

...National Equity contests the award of 4% of the surplus to Homeworks. It argues that Homeworks did not "obtain[ ] a court order disbursing the surplus to the owner of record." § 45.034(7)(b), Fla. Stat. (2007). Our decision is controlled by the abuse of discretion standard applicable under section 45.033(5)....

...A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove to the court that such person is entitled to the funds. At any hearing regarding such entitlement, the court shall consider the factors set forth in s. 45.033 in determining whether an assignment is sufficient to overcome the presumption....

...At the evidentiary hearing, an equity assignee has the burden of proving that he or she is entitled to some or all of the surplus funds. The court may grant summary judgment to a subordinate lienholder prior to or at the evidentiary hearing. The court shall consider the factors in s. 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....

...to surplus funds as an assignee is entitled to an evidentiary hearing to prove that entitlement. The statute mandates that the court "shall set an evidentiary *980 hearing" to determine entitlement and that it must consider the factors set forth in section 45.033, Florida Statutes (2006), in reaching that determination....

disbursement of surplus funds following a judicial sale); § 45.033, Fla. Stat. (2012) (governing the sale or assignment

certain limited circumstances not present here. See § 45.033, Fla. Stat. (2016). When the legislature has provided

HB65 (2006) Staff Analysis 2 (Apr. 20, 2006). Section 45.033(3)(a) provides that if the surplus is transferred

...property of the owner of the property on the date of the foreclosure sale." Id. Presumptively, therefore, Ms. Edgehill is entitled to the surplus. The statute spells out the circumstances under which the presumption of ownership may be rebutted. Id. § 45.033(2)....

...We do not agree. The statute specifically says—twice— 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). Mr. Suarez is arguing that since he obtained title prior to the Wells Fargo foreclosure sale, it follows that he is to receive the surplus. The statute specifically rejects that analysis. The language of paragraph 45.033(2)(b) is instructive....

...guardian is appointed for the owner of record. Mr. Suarez's purchase at the first foreclosure sale accomplished a transfer of title, but did not (under this statute) accomplish an involuntary *412 transfer "of the right to collect the surplus." Id. § 45.033(2)(b)....

percent of the surplus funds in violation of section 45.033(3)(a)3.(d), Florida Statutes (2021). Petitioner

receipt of foreclosure proceeds pursuant to section 45.033(3), Florida Statutes. Appellant claimed that

related provision of the surplus recovery law. See § 45.033(3), (5), Fla. Stat. (2007). It was under this

presumption. (Emphases added.) Section 45.033(1) iterates that there is "a rebuttable