It's Official: Conflict Among the Florida Appellate Courts Regarding When the Sixty-Day Foreclosure Surplus Clock Begins

I saw two Appellate opinions this year that I KNEW would eventually cause a conflict.

Under section 45.031(7)(b), Florida Statutes (2015), any person claiming a right to surplus funds must file a claim with the clerk of court within sixty days of the foreclosure sale.

When does the “sale” take place is the question presented in the Courts. Is it when the auction actually occurs, when the certificate of sale is filed, or when the certificate of title is issued? This is the dilemma the courts recently found themselves in.

In the 4th District Court of Appeal, Straub v. Wells Fargo Bank, N.A., 182 So. 3d 878, 881 (Fla. 4th DCA 2016), the Court held that a foreclosure “sale” doesn’t take place until the issuing of the certificate of title. Meaning, that the auction could take place and the “sale” not take place for months later. In my opinion, this was a gross misinterpretation of the law.

However, a few months later, the 2nd District Court of Appeal in Bank of New York Mellon v. Glenville, 2D15-5198, held that the 60-day time limit for filing a claim for surplus funds did not commence at the certificate of sale, but on the actual day of the sale. This decision is in clear conflict with the Straub holding.

Yesterday, the Glenville Court issued an opinion which states, “However, we recognize that our holding in this opinion conflicts with the Fourth District's holding in Straub. Therefore, we must certify conflict.” The Court further elaborated on how the Straub case got their ruling incorrect and the problems that arise from such a decision.

Essentially, the Florida foreclosure surplus funds statute MUST be read according to its “plain meaning.” Meaning, the 60-day time limit after the sale means just that, 60 days after the day of the auction.

Until further interpretation on this issue is resolved, there is going to be gross amounts of litigation on when this clock starts. If you are a homeowner that currently has a Florida owner’s claim for foreclosure surplus funds, contact my office for a free consultation regarding your case. We don’t get paid unless we win for you!

Whether you need a Miami foreclosure surplus funds lawyer, Fort Lauderdale foreclosure surplus funds lawyer, Palm Beach foreclosure surplus funds lawyer, Tampa foreclosure surplus funds lawyer, Daytona beach foreclosure surplus funds lawyer, Kissimmee foreclosure surplus funds lawyer, Brevard County foreclosure surplus lawyer, Lake county foreclosure surplus lawyer, Winter Park foreclosure surplus lawyer, North Miami Beach foreclosure surplus lawyer, Jacksonville foreclosure surplus lawyer, Lee County foreclosure surplus lawyer, Sarasota foreclosure surplus funds lawyer, Marion County foreclosure surplus lawyer, Bay County foreclosure surplus Lawyer, Indian hills foreclosure surplus lawyer, Orlando foreclosure surplus lawyers, or Orange county foreclosure surplus attorney, we will represent parties in any county in the state of Florida!

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