Foreclosure Surplus Funds: When Does the Sixty (60) Day Time Limit to Claim Funds Begin?

Florida Statute 45.031(1)(a) states, “If you are a subordinate lienholder claiming a right to funds remaining after the sale, you must file a claim with the clerk no later than 60 days after the sale. If you fail to file a claim, you will not be entitled to any remaining funds.”

Reading the statute above, for its plain meaning, shows that once a sale occurs, all Florida Foreclosure Surplus Funds claims must be made within sixty (60) days. It seems simple. However, a recent case out of the Fourth DCA, specifically, Straub v. Wells Fargo Bank, 182 So.3d 878 Fla. 4th DCA 2016, held that a subordinate lienholder’s claim is timely when filed sixty (60) days after issuance of the certificate of title, not the actual sale or certificate of sale.

The Appellate Court reasoned that Under Florida Statute 45.031(1)(a), (2)(f), and (7)(b), a foreclosure “sale” takes place when ownership of the property is transferred upon filing of the certificate of title. Issuance of title confirms the sale. Id. However, this interpretation is inadvertent and unnecessary via the plain meaning doctrine. “It is a fundamental principle of statutory construction that where a statute is plain and unambiguous there is no occasion for judicial interpretation.” Golf Channel v. Jenkins, 752 So.2d 561, 564 (Fla.2000).

Here, the Florida Foreclosure Surplus Funds statute is not ambiguous whatsoever. In fact, it is fair to assume that if the legislature wanted to make the sixty (60) day time limit start at the certificate of title, they would have expressed that in this statute. Instead, Florida Statute 45.031 clearly says the word “sale” and not “certificate of title.”

My hope is that I get the chance to argue this specific issue in front of a Florida DCA. This case needs to be overturned and flagged as it is bad law. Again, not only is there a plain meaning of the statute here, but this case gives lienholders even more leeway to drag their feet in collecting surplus funds. I can assure you, this was not the intent of the Florida Legislature.

Whether you need a Miami Foreclosure Surplus Attorney, Fort Lauderdale Foreclosure Surplus Attorney, Orlando Foreclosure Surplus Law Firm, Tampa Foreclosure Surplus Attorney, Fort Myers Surplus Attorney, Daytona Beach Surplus Attorney, Palm Beach Surplus Attorney or a Jacksonville Foreclosure Surplus Attorney, the law firm of Haynes & de Paz will represent a homeowner in any county in Florida!

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