Junior Lienholders and Banks Need to Take Care to Timely File Claims For Surplus Funds

Published: February 6th, 2017

By: Joel C. Zwemer

Because real estate values are rising again in Florida, it is becoming more common for there to be third party purchasers at foreclosure sales who pay more than the amount of the foreclosure judgment in order to obtain title to the property being sold. The balance of the purchase funds, after payment of the clerk’s fees and judgment amount, is known as the surplus. The surplus funds may be used to pay junior liens and mortgage claims, if a claim is submitted by the junior lienholder or mortgage holder within the time prescribed by statute.

Pursuant to Florida Statute Section 45.031(7)(b), any person claiming a right to surplus proceeds must file a claim with the Clerk of Court within sixty days of the foreclosure sale. A recent decision by the Florida Fifth District Court of Appeal clarifies that the date of the actual sale, not the date that the clerk issues the certificate of sale, is the starting point for calculating the sixty day period. In The Bank of New York Mellon v. Glenville, 42 Fla. Law Weekly D212 (January 20, 2017), a bank holding a junior lien filed a claim to surplus proceeds on September 2, 2015, sixty-two days after the date the property was sold. The trial court denied the bank’s claim as being untimely. On appeal, the bank argued that the sixty day time period should begin on the date the clerk issues the certificate of sale, not the sale date. The appellate court disagreed. The district court observed that the relevant statute specifically provides that after a sale of the property the clerk shall promptly file a certificate of sale. Consequently the statute describes the sale and the issuance of the certificate as separate events. Because the statute expressly requires the filing of a claim within sixty days of the date of the “sale”, it is that date, not the date that the certificate is issued that is controlling. Because the bank’s claim was filed outside the statutory window, the bank’s claim was found to have been properly denied.

The Bank of New York Mellon v. Glenville, 42 Fla. Law Weekly D212 (January 20, 2017)

About the Author:
Joel C. Zwemer is an attorney and Shareholder in Dean Mead’s Fort Pierce office. He concentrates his practice in the areas of commercial business and real estate litigation, creditors’ rights and bankruptcy. He has successfully litigated a wide range of cases in federal and state courts and regularly represents financial institutions in business and bankruptcy cases and litigation in Fort Pierce and Port Saint Lucie. He may be reached at (772)464-7700 or jzwemer@deanmead.com.