215 So. 3d 1284
Fla. Dist. Ct. App.2017Background
- Property sold at public foreclosure auction on July 2, 2015; clerk issued certificate of sale on July 6, 2015.
- Bank of New York Mellon (appellant) filed a claim for surplus funds as a subordinate lienholder on September 2, 2015 (62 days after the auction, 57 days after the certificate of sale).
- Trial court denied the bank’s claim as untimely under section 45.031(7)(b), Florida Statutes (2015).
- Bank appealed, arguing the 60-day claim period runs from issuance of the certificate of sale (or certificate of title), not the auction date.
- The court reviewed statutory text, prior controlling precedent, and the statute’s distinct use of “sale,” “certificate of sale,” and “certificate of title.”
- Court affirmed denial, holding the 60-day period begins on the date of the actual sale (auction), and certified conflict with the Fourth District’s Straub decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 60‑day filing period in §45.031(7)(b) begin? | The bank: period starts on issuance of the certificate of sale (or certificate of title). | Defendants/owners: period starts on the date of the public sale (auction). | The court held the 60‑day period begins on the date of the actual sale (auction). |
| Is the bank’s September 2, 2015 claim timely? | Bank: filing was within 60 days measured from July 6 certificate date. | Owners: filing was after 60 days from July 2 sale. | The court held the claim was untimely and affirmed denial. |
| Should this court adopt Fourth DCA’s Straub rule (sale = filing of certificate of title)? | Bank (on rehearing): urged Straub and measuring from certificate issuance. | Court/owners: Straub conflicts with statute’s text and prior 2d DCA precedent. | The court refused to adopt Straub, certified conflict with the Fourth DCA. |
| Was there procedural waiver of the Straub argument? | Bank raised it for first time on rehearing, citing Straub. | Court: appellant waived new argument by not raising it on appeal. | Court applied waiver rule but also certified conflict given differing district authority. |
Key Cases Cited
- Mathews v. Branch Banking & Tr. Co., 139 So.3d 498 (Fla. 2d DCA 2014) (interpreting §45.031(7)(b) to require filing within 60 days after the sale)
- Dever v. Wells Fargo Bank Nat’l Ass’n, 147 So.3d 1045 (Fla. 2d DCA 2014) (uses auction date as start of 60‑day period)
- Gulf Atl. Office Props., Inc. v. Dep’t of Revenue, 133 So.3d 537 (Fla. 2d DCA 2014) (statutory interpretation—plain meaning controls)
- Straub v. Wells Fargo Bank, N.A., 182 So.3d 878 (Fla. 4th DCA 2016) (Fourth DCA held sale occurs on filing of certificate of title; conflict certified)