203 So. 3d 1003
Fla. Dist. Ct. App.2016Background
- Michael Shelton, trustee and record title owner as of Sept. 24, 2013, was a defendant in a mortgage foreclosure; final judgment entered June 25, 2015.
- Property sold at public foreclosure sale Nov. 10, 2015; Shelton filed an objection to sale Nov. 20, 2015.
- Trial court denied the motion to set aside the sale, ratified the sale, and directed the clerk to issue a certificate of title to The Bank of New York Mellon.
- Shelton argued the published notice of sale was defective under §702.035 because Hillsborough County had a 2010 population over one million, making weekly publication insufficient.
- Shelton also argued the Bank’s failure to provide an estoppel letter under §701.04 prevented him from exercising a statutory right of redemption.
- Court treated §45.031 (judicial sales procedures) and §45.0315 (right of redemption) as controlling and noted Shelton did not comply with Fla. R. Civ. P. 1.071 when raising a constitutional challenge to §702.035 (no notice to Attorney General/state attorney).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether published notice complied with §702.035 and whether that statute is an unconstitutional special law | Shelton: §702.035 ties publication requirement to 2000 census population; strict construction renders it a special law and unconstitutional, so weekly paper publication was inadequate | Bank: Sale was ordered under §45.031; notice complied with §45.031(2); Shelton failed to follow Rule 1.071 for constitutional challenge | Court refused to consider constitutional challenge (Shelton failed to serve AG/state attorney). Because sale followed §45.031 and Shelton did not contest compliance with §45.031, no relief granted |
| Whether failure to provide estoppel letter under §701.04 defeated Shelton’s ability to redeem | Shelton: Bank’s failure to provide an estoppel letter within 14 days prevented him from knowing amounts needed to redeem | Bank: Right of redemption governed by §45.0315 and final judgment; Shelton was a party and received the judgment specifying redemption amount | Court held §45.0315 controls redemption; absence of estoppel letter or §701.04 compliance is not a basis to set aside sale where plaintiff received judgment containing redemption information |
| Whether conduct alleged justifies equitable relief to set aside the sale | Shelton: Procedural defects in notice and estoppel letter warrant setting aside sale | Bank: Alleged defects did not relate to sale conduct and Shelton had notice of judgment and redemption rights | Court applied precedent that objections must relate to sale conduct; defects outside sale process insufficient to set aside sale |
Key Cases Cited
- City of Miami v. McGrath, 824 So. 2d 143 (Fla. 2002) (special-law analysis and strict construction of statutes tied to particular population/date)
- Diaz v. Lopez, 167 So. 3d 455 (Fla. 3d DCA 2015) (failure to comply with Rule 1.071 bars consideration of constitutional challenge)
- Brinkmann v. Francois, 184 So. 3d 504 (Fla. 2016) (procedural requirements satisfied in constitutional-challenge context)
- Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087 (Fla. 2d DCA 2015) (§45.0315 governs right of redemption after final judgment)
- Skelton v. Lyons, 157 So. 3d 471 (Fla. 2d DCA 2015) (objections to foreclosure sale under §45.031(5) must concern conduct at or related to the sale)
- Sulkowski v. Sulkowski, 561 So. 2d 416 (Fla. 2d DCA 1990) (equitable relief to set aside sale requires adequate grounds)