fOreCLOsure disBursemeNts:
whO reaPs the fiNaNCiaL rewards?
Real Property, Probate & Trust Law Section
Continued from page 64
their money in a foreclosure sale have to comply with very specific
deadlines established in Florida Statutes §§ 45.031 and 45.032. In Bank
of New York Mellon v. Glenville, 252 So. 3d 1120 (2018), the Florida
Supreme Court clarified these statutory deadlines. The Glenvilles
obtained a first mortgage from JP Morgan Chase and proceeded to
obtain second and third mortgages from the Bank of New York Mellon
and Florida Housing, respectively. JP Morgan instituted a foreclosure
action against the Glenvilles, and a final judgment set a public auction
date of July 2, 2015. A winning bid and sale occurred, and a certificate
of sale was issued on July 6. On July 14, the Clerk of Court issued a
certificate of title, and a certificate of disbursements was issued on
July 29, which reflected a surplus of $86,093.27.
As background, when a foreclosure sale occurs, and a surplus is
available, the remaining mortgagors and mortgagee must file a claim
for those funds within sixty days of the sale. The Glenvilles and Florida
Housing both filed their claims within sixty days of the public auction
sale date. However, Mellon filed its claim sixty-one days after the
auction. The trial court and the Second District Court of Appeal
found that Mellon untimely filed its claim. However, the Second
District certified conflict with the Fourth District Court of Appeal in
Straub v. Wells Fargo Bank, N.A., 182 So. 3d 878 (Fla. 4th DCA 2016),
which found that the “sale date” was the date that the clerk issues its
“certificate of title.”
In Glenville, the Florida Supreme Court resolved the DCA conflict
and determined that the statutory date of sale is not the date of the
public auction, nor is it the date of the certificate of title. Rather, the
date of sale specifically means the actual date that the clerk issues a
certificate of disbursements.
In every foreclosure there are substantial assets to be lost or disbursed,
and it is important for practitioners to be aware of the statutory
deadlines to file a proper claim, or significant funds can be forfeited.
One option to consider in these situations — the Hillsborough’s
Residential Mortgage Foreclosure Mediation Program is an excellent
resource to negotiate a resolution and avoid foreclosure. The Supreme
Court of Florida created the program in 2009 when it presented each
judicial circuit with the challenge of developing and implementing
the program. The Thirteenth Judicial Court selected the Hillsborough
County Bar Foundation to serve as program manager for the mediation
program. Even though the statewide program has
ended, the Thirteenth Judicial Circuit continued
the program locally through Administrative Order
S-2015-015. For more information about the
Residential Mortgage Foreclosure Mediation
Program, call (813) 490-5042. n
Author: Caroline Johnson Levine - Bay Area Legal
Services, Inc.
JAN - FEB 2020
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HCBA LAWYER
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