CopyCited 25 times | Published | Supreme Court of Florida | 1973 Fla. LEXIS 4144
...McCAIN, Justice. This cause is before us to review the decision of the Third District Court of Appeal reported at
277 So.2d 843, which was certified to us as passing upon a question of great public interest, recited by that Court to be: "[W]hether Fla. Stat. §
45.031 as amended by chapter 71-5, Laws of Florida 1971, eliminates the right of redemption from foreclosure judgments after the date of the public sale up to the date the sale is completed by the order confirming sale." We have jurisdiction pursuant to Art....
...d a certificate of redemption was issued. From the order of redemption issued by the Circuit Court, the petitioner appealed to the Third District Court of Appeal. The District Court affirmed, basing its decision upon its interpretation of Fla. Stat. § 45.031(1), F.S.A., as amended by Chapter 71-5, Laws of Florida 1971. Fla. Stat. § 45.031(1), F.S.A., (1969) provided, in pertinent part: "In any order of final judgment the court shall direct the clerk to sell the property at public sale on a specified day, which shall be not less than ten or more than thirty days after the date thereof, on terms and conditions specified in the order of judgment......
...demption but that the courts had held that there was an inherent right of redemption evolving from the common law which could be exercised at any time prior to entry of an order confirming a sale. Turning to the amendment, the District Court found: "§ 45.031(1), Fla....
...Tunnicliffe,
98 Fla. 731,
124 So. 279], we hereby find that the Legislature intended to adopt the recognized meaning of the word `sale' and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to §
45.031(3), Fla....
...Stat., ten days after the day of the sale, upon no objections being filed thereto and issuance of the certificate of title." [1] After oral argument and upon consideration of the petition, the briefs and the record, we conclude that the District Court has correctly interpreted Fla. Stat. § 45.031(1), F.S.A....
CopyCited 25 times | Published | United States Bankruptcy Court, S.D. Florida. | 10 Bankr. Ct. Dec. (CRR) 382, 1983 Bankr. LEXIS 6737
...The right of the mortgagor to redeem is regarded as an incident to every mortgage. 22 Fla.Jur.2d "Mortgages," Section 108. While Florida Statutes do not specify the exact number of days within which a mortgagor may exercise the right of redemption, Florida Statute 45.031, "Judicial Sales Procedure," provides, "In cases when a person has an equity of redemption, the Court shall not specify a time for the redemption, but the person may redeem the property at any time before sale." F.S.A. Section 45.031(1)....
...up to the date when ownership of the property is transferred. Allstate Mortgage Corporation of Florida v. Strasser,
286 So.2d 201 (Fla., 1973). The Florida Supreme Court, in construing the meaning of the word "sale" contained within Florida Statute
45.031, has stated ". . . we hereby find that the Legislature intended to adopt the recognized meaning of the word `sale' and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to Statute
45.031(3) Fla.Stat., ten days after the day of sale, upon no objections being filed thereto and issuance of a certificate of title." (Id....
CopyCited 25 times | Published | District Court of Appeal of Florida | 2012 WL 6602661, 2012 Fla. App. LEXIS 21693
...Thus, the Bank contends that the trial court erred in delaying the issuance of the *1236 certifícate of title pending the resolution of the Hagans’ facially deficient objection to the foreclosure sale and time-barred motion to vacate. We agree. The procedures governing judicial sales are outlined in section 45.031, Florida Statutes (2012)....
...e it.”). Thus, to justify a delay in the issuance of a certificate of title, the substance of the filing must constitute an objection to the foreclosure sale. Florida case law is clear that the substance of an objection to a foreclosure sale under section 45.031(5) must be directed toward conduct that occurred at, or which related to, the foreclosure sale itself....
CopyCited 20 times | Published | United States Bankruptcy Court, M.D. Florida | 1995 Bankr. LEXIS 1269, 1995 WL 534618
...After a Chapter 13 case was filed, a plan confirmed, and the case dismissed for failure by the Debtor to perform under the terms of the plan, a foreclosure sale of the property was set by the state court. The foreclosure sale was ordered pursuant to the judicial sales procedure set out in section 45.031, Florida Statutes....
...derations ( see In re Campbell, supra ) the revision may reintroduce them. [4] Accordingly, the Court examines state law. Relevant portions of the judicial sales procedure in Florida are set forth in the following provisions of the Florida Statutes: 45.031 Judicial sales procedure....
...e common law further than clearly necessary. [5] The court held that this amendment to the statute did not clearly change the prior common law rule because the sale did not take place until ownership of the property was transferred, and according to § 45.031(3), Fla.Stat., the transfer takes place ten days after the day of the sale, upon no objections being filed thereto and issuance of the certificate of title....
...See Allstate Mortgage Corporation of Florida v. Strasser, supra . [6] In 1993, the Florida legislature amended the statute to specifically provide that the right of redemption terminates with the filing of the certificate of sale, unless the foreclosure judgment specifies a later time: 45.0315 Right of redemption....
CopyCited 18 times | Published | United States Bankruptcy Court, S.D. Florida. | 1982 Bankr. LEXIS 3494, 9 Bankr. Ct. Dec. (CRR) 708
...s $11.2 million. The fact that neither Equitable nor the second mortgagee sought a deficiency decree supports the conclusion that the property was worth at least $7.9 million, the extent of the two liens. Secondly, a foreclosure sale conducted under § 45.031, Florida Statutes, as this one was, is subject to challenge if the sale price was so inadequate as to indicate fraud or other irregularity. Unless challenged successfully: "The amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale." § 45.031(7)....
CopyCited 15 times | Published | United States Bankruptcy Court, S.D. Florida. | 1983 Bankr. LEXIS 6698
...178, 189. Indeed, though the point is not presented here, I am convinced that the right to de-accelerate the mortgage lien, cure the default and reinstate the installment debt continues (at least in Florida) until the statutory right of redemption expires. §
45.031(3), Florida Statutes; All-state Mortgage Corp. of Florida v. Strasser, Fla.1973,
286 So.2d 201, 203; 37 Fla.Jur.2d Mortgages, § 365. That occurs when the clerk files a certificate of title, ten days after the filing of the certificate of sale if no objections are filed. §
45.031(3), Florida Statutes....
CopyCited 15 times | Published | Supreme Court of Florida | 1992 WL 163953
...le on _______________, 19__, between 11:00 a.m. and 2:00 p.m. to the highest bidder for cash, except as prescribed in paragraph 4, at the _______ door of the courthouse in ___________________ County in __________________, Florida, in accordance with section 45.031, Florida Statutes....
CopyCited 15 times | Published | Florida 3rd District Court of Appeal
...entered its order permitting Shirley Strasser to redeem the property, which she did. The sole question presented by this appeal is whether or not the trial court erred in ordering redemption subsequent to the day of sale, in view of the amendment to § 45.031(1), Fla....
...y a time for redemption, but the person may redeem the property at any time before the sale." The Appellant contends that, pursuant to this amendment, no redemption may be granted subsequent to the day of sale. We disagree. Prior to the amendment to § 45.031(1), Fla....
...Tunnicliffe,
98 Fla. 731,
124 So. 279], we hereby find that the Legislature intended to adopt the recognized meaning of the word "sale" and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to §
45.031 (3), Fla....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal | 1995 Fla. App. LEXIS 6132, 1995 WL 335707
...The claim here is that the trial court erroneously permitted a mortgagor to exercise its right of redemption from a foreclosure judgment after the property had been sold to an intervening purchaser at public sale and the clerk's certificate had issued. Upon examination of the matter, we find that the provisions of section 45.0315, Florida Statutes (1993), entirely control the matter....
...Appellants, as intervening purchasers, claim that upon the filing of the certificate of sale by the clerk, the mortgagor's right to redeem was extinguished as specifically provided for in the final judgment of foreclosure, which judgment is entirely consistent with *249 section 45.0315....
...With the advent of a mortgagee's resort to the remedy of foreclosing the mortgage or other security interest, the practice became obsolete. However, the equity of redemption remains a powerful, substantive right. 37 Fla.Jur.2d Mortgages & Deeds of Trust §§ 108-109. At the time Strasser was decided, under then-existing section 45.031(1), Florida Statutes (1973), there was a legislative prohibition against courts ordering redemptive rights to be extinguished prior to sale. Laws of Florida, chapter 93.250, Section 1, effective October 1, 1993, re-enacted section 45.031, which deleted the prohibition. As indicated, section 45.0315, Florida Statutes (1993), explicitly empowers a court in the final judgment of foreclosure to fix the time in which the mortgagor may redeem. Where the judgment is silent in that regard, redemptive rights are lost upon the clerk's filing of a certificate of sale. The mandate of section 45.0315 is contained in its last sentence, which provides: "Otherwise, there is no right of redemption." The statute, per se, abolishes neither the procedural nor the substantive right to redeem....
...after the filing of the clerk's certificate of sale. Consequently, the election was late and the right to redeem was already extinguished. Independently, the mortgagor-appellee argues that confirmation of the sale is nonetheless required pursuant to section 45.031(5), Florida Statutes (1993). This is undoubtedly correct if an objection to the sale is filed pursuant to section 45.031(4)....
...Consequently, the clerk was entitled to issue to the successful bidder a certificate of title without judicial confirmation. By way of recapitulation, we observe that the common law rule announced in Allstate v. Strasser, with respect to redemption, has been displaced by the enactment of section 45.0315, Florida Statutes, which exclusively governs the time, manner, and procedure for the claimed exercise of redemptive rights....
...s of course the allowable costs and attorney's fees to the purchaser, and to grant such other relief as may be appropriate. Reversed. NOTES [1] Paragraph 10 of the final judgment of foreclosure provided: 10. The sale shall be held in accordance with Section 45.031 of the Florida Statutes, and upon the Clerk filing the Certificate of Sale, all persons shall forever be barred and foreclosed of any and all equity or right of redemption in and to the above-described property, and subsequently, upon the Clerk filing the Certificate of Title as provided by Section 45.031 of the Florida Statutes, the sale shall stand confirmed, and the purchaser at said sale or the purchasers, their heirs, representatives, successors or assigns, shall without delay be let into possession of the said premises as conveyed...
...y specifically authorized to issue a Writ of Possession for the premises located at 1016 18TH TERRACE, KEY WEST, FLORIDA 33040 and the Sheriff is hereby authorized to serve the Writ of Possession forthwith after issuance of Certificate of Title. [2] Section 45.0315 provides: Right of redemption....
CopyCited 13 times | Published | United States Bankruptcy Court, M.D. Florida | 1982 Bankr. LEXIS 4008
...9.21. Pursuant to the final judgment, the property was sold at public sale by the clerk of the court for Pinellas County, Florida on January 29, 1982, for the sum of $300,000. The clerk promptly filed the Certificate of Sale as required by Fla.Stat. § 45.031(2)....
...However, prior to the filing of the Certificate of *547 Title, Construction Leasing filed its petition for relief in this Court thereby preventing the completion of the foreclosure proceeding. It is important to note at the outset that under Fla.Stat. § 45.031 et seq....
...the owner of the foreclosed property may exercise a right of redemption within 10 days after the filing of the Certificate of Sale. It is the filing of the Certificate of Title which vests the title of the property in the purchaser and extinguishes the mortgagor's right of redemption. Fla.Stat. § 45.031(4)....
CopyCited 13 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 10336, 2010 WL 2882402
...jurisdiction *265 over the sale proceeds to the extent that they satisfy Tribeca's equitable lien. We reverse on those two issues. Affirmed in part; reversed in part and remanded for correction of judgment. TAYLOR and MAY, JJ., concur. NOTES [1] See § 45.031(3), Fla....
CopyCited 13 times | Published | Florida 4th District Court of Appeal | 1991 WL 120802
...k's issuance of the certificate of title and that the complete payment to the mortgagee of the amount due under the judgment satisfied the mortgage and the judgment, redeemed the property, and discharged the judgment which ordered the judicial sale. Section 45.031, Florida Statutes (1989) contains the procedure for judicial sales....
...e after it has been forfeited, at law, by a breach of the condition of the mortgage, upon paying the amount of debt, interest and costs." Black's Law Dictionary, Fifth Edition 1979. This right may be exercised at any time before the sale. Fla. Stat. § 45.031(1)....
...In this case the mortgagors redeemed the property through payment to the mortgagee of the entire amount of the judgment. The satisfaction of mortgage and judgment and the deed transferring the property were recorded prior to the issuance of the certificate of title by the clerk. Thus, by operation of section 45.031(1), Florida Statutes (1989) the mortgagor had redeemed the property by satisfying the judgment of record. Appellant argues that because appellees neither gave notice of the conveyance of the property and of the execution of the satisfaction nor filed objections under section 45.031(4), the certificate of sale was properly issued and cannot be set aside....
...issuance of the certificate of title that Mr. and Mrs. Shatz had exercised their right of redemption. Further, we also find that failure to file an objection to confirmation based upon the redemption does not prevent cancellation of the certificate. Section 45.031(4), Florida Statutes (1989) provides that any objections to the sale be filed with the clerk prior to the issuance of the certificate of title....
CopyCited 12 times | Published | Florida 1st District Court of Appeal
...The final judgment further provided that "[i]f the total sum with interest at the rate prescribed by law and all costs of this action accruing subsequent to this judgment are not paid within three days from this date" the property be sold by the Clerk "to the highest bidder" in accordance with F.S. 45.031....
CopyCited 12 times | Published | United States Bankruptcy Court, M.D. Florida | 1982 Bankr. LEXIS 4676
...The Clerk proceeded pursuant to the direction of the Summary Final Judgment and conducted a sale on that date, at which time the holder of the second mortgage, CNB, in order to protect its interest, bid in and purchased the subject property. The Clerk promptly filed his Certificate of Sale as required by the Statute § 45.031 et seq., however, before the Certificate of Title was issued First Dade filed its petition for relief in this Court which, ostensibly brought the entire foreclosure proceeding to a screeching halt, much to the chagrin of the Banks....
...cate of Title is issued, the sale is final and is deemed to be confirmed and the purchaser named in the Certificate becomes the legal owner of the subject property without the necessity of any further proceedings or filings of any other instruments. § 45.031(4) of the Florida Statutes....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 1990 WL 60905
...to, the Clerk of the Court shall sell the subject property at public sale on the 17th day of May, 1989 at 11:00 A.M. or as soon thereafter as same can be done, to the highest and best bidder for cash... after having first given notice as required by Section 45.031, Florida Statutes, such sale to be pursuant to and in accordance with said Statute....
...ery partition sale. The trial court entered an order setting aside the certificate of sale and certificate of title and instructed the clerk to conduct another public sale of the subject property in September 1989. The order set out that pursuant to section 45.031, Florida Statutes, [*] *418 the parties or any third-party bidder would be required to post "a deposit equal to five (5%) percent of their final bid or $1,000.00 cash (not credit) whichever is less." It is this order from which Walter Sulkowski and Jerzy Sulkowski appeal. Since 1985, section 45.031 has required the successful bidder at a judicial sale held pursuant to that statute to post a deposit of up to $1,000 "[a]t the time of the sale." It is apparent that Alina Sulkowski was unaware of this requirement and simply came to the sale without the necessary cash....
...e result of any mistake, accident, surprise, fraud, misconduct, or irregularity on their part. Whether the sales price was adequate or inadequate, the clerk did not commit any mistake or irregularity by applying correctly the deposit requirements of section 45.031, especially when the order setting the sale referred to the statute....
...The deposit shall be applied to the sale price at the time of payment. If final payment is not made within the prescribed period, the clerk shall readvertise the sale as provided in this section and pay all costs of the sale from the deposit. Any remaining funds shall be applied toward the judgment. § 45.031, Fla....
CopyCited 10 times | Published | Supreme Court of Florida
...y at public sale on __________, 19__, between 11:00 a.m. and 2:00 p.m. to the highest bidder for cash, except as prescribed in paragraph 4, at the _________ door of the courthouse in _____________ County in _______________ Florida in accordance with section 45.031, Florida Statutes....
CopyCited 10 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 562, 2013 WL 3466800, 2013 Fla. LEXIS 1428
...In turn, INT assigned all of its apparent rights to the sold residential property to Nicholas Arsali. After learning about the judicial sale of their residence, on May 13, 2011, the borrowers filed an objection to the judicial sale with the trial court, pursuant to section 45.031, Florida Statutes (2010)....
...eclosure sales. We state that such a presumption is incorrect. The record in this case shows that the borrowers properly initiated a timely objection to the judicial foreclosure sale of their home, well within the 10-day period set forth in sections 45.031(5) and 45.031(8), Florida Statutes....
...If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles. § 45.031, Fla....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 14525, 2009 WL 3102130
...ion of any kind can rest on such a foundation. This is particularly true here because the order contravenes the terms of the statute that a sale is to be conducted "not less than 20 days or more than 35 days after the date" of the order or judgment. § 45.031(1)(a), Fla....
CopyCited 9 times | Published | Florida 5th District Court of Appeal
...dgment of foreclosure determines to be due. Blue Heron Land Co. v. Brown,
98 Fla. 1238,
125 So. 369 (1930). See also, Flagler Center Building Loan Corp. v. Chemical Realty Corporation,
363 So.2d 344 (Fla. 3d DCA 1978). Neither do we find anything in section
45.031, Florida Statutes (1981), that requires a mortgagor to seek permission of the court in order to exercise his right of redemption, which exists up to the time the certificate of title is issued....
CopyCited 7 times | Published | United States Bankruptcy Court, M.D. Florida | 1983 Bankr. LEXIS 4961
...Absent the filing of a written objection to the sale, the Clerk automatically files a Certificate of Title ten days after the sale. The sale stands as confirmed by the Court and title to the property passes to the purchaser without the necessity of further proceedings. § 45.031 Fla.Stat....
...the Clerk of the Circuit Court during the 60 day period is irrelevant. Pursuant to Florida law, the Clerk is directed to file the Certificate of Title upon the expiration of the Florida 10 day redemption period if no objection to the sale is filed, § 45.031 Fla.Stat....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1991 WL 244653
...1st DCA 1990); Norwest Bank Owatonna, N.A. v. Millard,
522 So.2d 546, 547 (Fla. 4th DCA 1988). The amount bid at a judicial sale "may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles." §
45.031(8), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1996 WL 660587
...The right of redemption is a valued and protected equitable right of the mortgagor to reclaim his estate in foreclosed property after it has been forfeited, at law, by paying the amount of the debt, interest and costs. CCC Properties Inc. v. Kane,
582 So.2d 159 (Fla. 4th DCA 1991). Former section
45.031 and current section
45.0315, which govern the right of redemption are in derogation of common law, and should be strictly construed. Allstate Mortgage Corp. of Fla. v. Strasser,
277 So.2d 843 (Fla. 3d DCA), affirmed,
286 So.2d 201 (Fla.1973). Pursuant to former section
45.031, a mortgagor could exercise the right of redemption any time before the issuance of the certificate of title. Current section
45.0315 provides: At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest ma...
...If ambiguous, it should not be construed against the equitable right of redemption. A revisiting of this particular form may be advisable, if this is not its intended meaning. Clear language could have extinguished the right of redemption in this case at the point provided in section 45.0315, but absent such language we must construe it strictly, as not having that effect....
...he certificate of title was filed. This case is distinguishable from Emanuel, because in that case the judgment was silent as to a different time than that provided by the statute, for cutting off redemption rights. Thus the earlier date provided by section 45.0315time of filing the certificate of sale by the clerk of the courtwas not applicable here....
CopyCited 7 times | Published | Florida 5th District Court of Appeal
...the real value of the property, he should not have confirmed the sale, but ordered a resale of the property. Penn Mut. Life, supra . Present statutory law does not require confirmation, but allows the sale to become final if no objections are filed. § 45.031, Fla. Stat. [3] In 1971, section 45.031(7), Florida Statutes, was amended to reflect the Cooper decision....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1995 WL 706849
...Fincham,
443 So.2d 312, 313 (Fla. 4th DCA 1983) (reversing order denying wife's motion to vacate judicial sale of marital domicile where notice of sale prepared by husband's counsel was not served on wife). Outlining the procedure to be followed in a judicial sale, section
45.031(1), Florida Statutes (1991) recognized a right of redemption "at any time before the sale." "`Before the sale' as [then] used in the statute has been interpreted to mean at any time before the issuance of the certificate of title." [4] CCC Properties, Inc....
...See also Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee,
543 So.2d 813 (Fla. 1st DCA 1989); Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl,
523 So.2d 725 (Fla. 3d DCA 1988); Bowman v. Kingsland Dev., Inc.,
432 So.2d 660, 663 (Fla. 5th DCA 1983). [4] Section
45.0315, Florida Statutes (1993), effective October 1, 1993, ch....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...It is argued that the amount bid at the sale established the value of the property foreclosed for the determination of the equities upon an application for a deficiency judgment. It is established that the sale price is one of the factors to be considered. See Section 45.031(7) Florida Statutes (1975); R.K....
CopyCited 6 times | Published | United States Bankruptcy Court, M.D. Florida | 9 Collier Bankr. Cas. 2d 816, 1983 Bankr. LEXIS 5066
...404, 409-10 (Bkrtcy.S.D.N.Y.1982). It has long been the law in Florida that the right or "equity" of redemption is inherent in any mortgage. Quinn Plumbing Co. v. New Miami Shores Corp.,
100 Fla. 413,
129 So. 690 (1930); Rosen v. Hunter,
227 So.2d 689 (Fla.App.1969). F.S.
45.031(a), enacted in 1977 and governing judicial sales of real (as well as personal) property, provides in pertinent part, "In cases when a person has an equity of redemption, the Court shall not specify a time for the redemption, but the person...
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2002 WL 1072105
...NORTHCUTT and STRINGER, JJ., Concur. NOTES [1] The foreclosure sale was scheduled in accordance with the statutory requirement that it be held no sooner than twenty days after entry of the final judgment and no later than thirty-five days thereafter. § 45.031(1), Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 4471, 2012 WL 933060
...Upon application by plaintiff requesting a sale of the Mortgaged Property and certifying that the monetary judgment has not been satisfied, this court shall enter an order instructing the Clerk of Court to sell the mortgaged property at the next available sale date in accordance with Section 45.031, Florida Statutes....
...ases. In each case, PNC sued Pugliese and an associated corporation for foreclosure and damages. In each, the trial court found for PNC and implemented the two-step structure of the final judgment described above. The judgments are nearly identical. Section 45.031 Did Not Require the Trial Courts to Set a Foreclosure Sale Defendants first contend that the trial courts contravened section 45.031, Florida Statutes (2008), by granting foreclosure without scheduling a foreclosure sale. They argue that subsection 45.031(l)(a) requires that the foreclosure sale be set within a certain time and that it was an abuse of discretion to indefinitely stay the sale. We reject this argument. In relevant part, subsection 45.031(l)(a) provides: In the order or final judgment, the court shall direct the clerk to sell the property *927 at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof, on terms and conditions specified in the order or judgment. The defendants rely on the above language. However, the plain language of the statute demonstrates that the procedure set forth in section 45.031 is not the exclusive procedure for setting a foreclosure sale and that a judge has the discretion to use a different procedure. The introductory paragraph of section 45.031 states: In any sale of real or personal property under an order or judgment, the procedure provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court. (Emphasis supplied.) By the use of the term “may” and the suggestion that section 45.031 procedure is an “alternative to any other sale procedure,” the statute plainly gives a circuit judge discretion to tailor the procedure for a foreclosure sale....
...“Historically, courts of equity came into being in order to provide a forum for the granting of relief in accordance with the broad principles of right and justice in cases where the restrictive technicalities of the law prevented the giving of relief.” Hedges v. Lysek,
84 So.2d 28, 31 (Fla.1955). While section
45.031 contains a ready-made procedure for a court to adopt, the statute does not mandate that a court utilize that procedure; rather, the judge may fashion a different sale procedure after considering the equities in the case. The defendants cite a line of cases to argue that a trial court’s indefinite stay of a sale constitutes an abuse of discretion. Those cases are distinguishable because they involve courts working within the structure of a section
45.031 sale procedure and mortgagees that are prevented from realizing the benefits of a foreclosure judgment, without an equitable basis which justifies the bar....
... Id. Thus, we reversed and instructed the trial court to set a sale date. Id. Thomas presents a scenario different than this case. There, the trial court in the final judgment set a date for the sale and adopted the alternative procedure set out in section 45.031, rather than fashioning its own procedure....
...y the plaintiff was limited, in the absence of circumstances justifying the delay. In the *928 instant case, however, the final judgments expressly declined to set sale dates so that PNC could pursue its final judgment at law. They provided that the section 45.031 sale procedure would be invoked once PNC certified that it was unable to satisfy the money judgments against the defendants....
...In addition, the defendants rely on LR5A-JV v. Little House, LLC,
50 So.3d 691 (Fla. 5th DCA 2010). However, the case does not support the defendants’ contention that the statute is a procedural straightjacket for a circuit court. Instead, it supports the notion that, even within the section
45.031 procedure, the circuit court “has reasonable discretion within the statutory framework to set or reset the date for such sale,” which is “consistent with the equitable nature of such proceedings,” id....
...he form provides in paragraph 3: “If the total sum with interest at the rate described [ ... ] are not paid, the clerk of this court shall sell the property at public sale on ... (date) ..., to the highest bidder for cash [ ... ] in according with section
45.031, Florida Statutes[.]” Nothing in the Supreme Court’s adoption of the form makes its utilization mandatory in all cases; rather, its purpose is to provide a clear and readable judgment that is in “conformity with current statutory provisions and requirements.” In re Amendments to Fla. R. of Civ. P.,
44 So.3d at 558. In any event, a requirement to follow this particular form would be at odds with the discretion granted in section
45.031. In sum, because section
45.031 gives a circuit court discretion to fashion the foreclosure sale procedure, and limits that discretion only after the court uses the statutory procedure to set a sale date, the trial courts in these cases did not abuse their discretion...
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 9340, 2009 WL 1940759
...osure sale. It held a certificate of sale to the property at issue. Pursuant to that certificate of sale, Shlishey had the right to obtain title to the property unless objections to the sale were filed within ten days and sustained by the court. See § 45.031(5), Fla....
...Thus, the absence of an explicit statutory procedure for post-sale proceedings did not give the trial court liberty to simply ignore the procedural due process rights of interested parties. Second, contrary to CitiFinancial's argument, the statute does set forth the required procedure. Section 45.031(8) provides that objections based on the amount of the bid may be filed within ten days after the clerk files a certificate of sale, and "[i]f timely objections to the bid *1276 are served, the objections shall be heard by the court....
..." (Emphasis added.) For the court to "hear" objections, it must provide both notice and an opportunity for any interested party to address those objections. See, e.g., Nelson v. Santora,
570 So.2d 1374, 1376 (Fla. 1st DCA 1990) (interpreting former version of section
45.031(8) to require the court to hold an actual hearing on any objections)....
...nts of the particular proceeding," Massey,
842 So.2d at 146, and we do not hold that a court may only "hear" objections to a foreclosure sale at an in-court proceeding with counsel physically present. However, we are certain that the word "heard" in section
45.031(8) does not contemplate that objections to a foreclosure sale may be decided ex parte and without notice to all interested parties, including the buyer holding the facially valid certificate of sale....
CopyCited 6 times | Published | United States Bankruptcy Court, S.D. Florida. | 1988 Bankr. LEXIS 103
...In re Martinez,
76 B.R. 217 (Bankr.S.D.Fla.1987). [1] The Date of the Sale With more plausibility, the debtors also argue that under Florida decisions, a judicial "sale" does not take place until the sale has become final under the provisions of Fla.Stat. §
45.031(1)-(5)....
...The statute then provides that: "When the certificate of title is filed the sale shall stand confirmed, and title to the property shall pass to the purchaser named in the certificate without the necessity of any further proceedings or instruments." § 45.031(5). The statute further provides that: "In cases when a person has an equity of redemption, the court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale." § 45.031(1)....
...aid: "we hereby find that the Legislature intended to adopt the recognized [by the Florida court] meaning of the word `sale' and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to § 45.031(3), Fla.Stat., ten days after the day of the sale, upon no objections being filed thereto and issuance of the certificate of title." The Court held, therefore, that the right of redemption did not expire until issuance of the certificate of title....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...ciency judgment and every opportunity to proceed with such evidence as they thought proper. Inasmuch as no evidence of fair market value was introduced, other than the sale price, the deficiency judgment was properly entered. [1] Affirmed. NOTES [1] Section 45.031(7), Florida Statutes (1977), states: "VALUE OF PROPERTY....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2005 WL 3533675
...See Allstate Mortgage Corp. of Florida v. Strasser,
286 So.2d 201 (Fla. 1973) (common law right of redemption in mortgaged property continues until confirmation of sale). The Legislature has enacted two statutes touching on this right of redemption. Section
45.031 provides generally for judicial sales in foreclosure actions and states that the issuance of the certificate of title confirms the sale. Section
45.0315 enforces a statutory right of redemption, but it does not clearly state that it is intended to replace the common law....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2006 WL 2986301
...Nevertheless, I believe that, "once the certificate [of title] is issued, redemption is precluded, even if the party asserting the right was not made a party to the foreclosure proceedings." Id. The final judgment of foreclosure provided: "The sale shall be held in accordance with § 45.031 Fla....
...(1995), and upon the Clerk filing the Certificate of Sale, all persons shall be forever barred and foreclosed of any and all equity or right of redemption in and to the above property." The property was sold and the certificate of sale was filed on 8 July 2005. Section 45.0315, Florida Statutes (1995), provided: At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of a...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 1339
...certificate of title was issued to Mrs. McKenzie. Because two of these issues either were not or could not be proved, the jury had to speculate on possible outcomes in order to reach its verdict. Issues one and three can be resolved by reference to section 45.031, Florida Statutes (1983). Section 45.031(1) outlines the procedure of a judicial sale and specifically states that the property may be redeemed at any time before the sale. Section 45.031(2) recites the form of the clerk's certificate of sale which is issued following the sale to the person who was the highest and best bidder for cash. Section 45.031(3) provides a ten day period following a judicial sale within which to file objections to the sale....
...Here, however, the mortgagor knew immediately that there was a problem with the legal description which would require that the sale be set aside and a new judicial sale scheduled. Therefore, he was under no obligation to redeem within the ten day period allowed by section 45.031(3)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2006 WL 625590
...The paralegal called the attorneys for the lender and found out that the sale had taken place as scheduled that day. Action Realty was the successful bidder at the sale, purchasing the property for $162,000. The paralegal ran the title search again and discovered the final judgment. Within the ten day time permitted under section 45.031(4), Florida Statutes, for filing objections to the sale, Grandison filed an objection to the foreclosure sale and a motion to vacate....
...f the amount of the judgment after it has been forfeited through foreclosure is a valuable equitable right. See Indian River Farms v. YBF Partners,
777 So.2d 1096 (Fla. 4th DCA 2001). That equitable right, available at common law, is now governed by section
45.0315, Florida Statutes (2004), which provides: At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holde...
...xpenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney's fees of the creditor. Otherwise, there is no right of redemption. As was noted in Saidi v. Wasko,
687 So.2d 10, 11 (Fla. 5th DCA 1996), under former section
45.031, the right of redemption could be exercised up to the time of the issuance of the certificate of title. However, section
45.0315 provides that the right may now be exercised up until the certificate of sale unless another time is set in the judgment of foreclosure....
CopyCited 5 times | Published | Supreme Court of Florida | 2010 WL 455295
...[2] Upon consideration, we adopt the proposed amendments to form 1.996, with one exception, as further explained below. First, to conform to current statutory requirements, a notice to lienholders and directions to property owners as to how to claim a right to funds remaining after public auction is added to the form. See § 45.031(1), Fla. Stat. (2009). Additionally, to conform to current statutory provisions allowing the clerk of court to conduct judicial sales via electronic means, the form is amended to accommodate this option. See § 45.031(10), Fla....
...orm to existing practice and require a successful purchaser to pay the documentary stamps on the certificate of title; (4) paragraph six is amended to accommodate the possibility that there may be multiple defendants, to adapt to the requirements of section 45.0315, Florida Statutes (2009), stating that the right of redemption expires upon the filing of the certificate of sale, unless otherwise specified in the judgment, to recognize the potential survival of certain liens after foreclosure *559...
...to the highest bidder for cash, except as prescribed in paragraph 4, at the ..... door of the courthouse inlocated at.....(street address of courthouse)..... in .................... County in ...............(name of city). . . . ., Florida, in accordance with section 45.031, Florida Statutes., using the following method (CHECK ONE): [] At .......
...The reference to writs of assistance in paragraph 7 is changed to writs of possession to comply with the consolidation of the 2 writs. 2010 Amendment. Mandatory statements of the mortgagee/property owner's rights are included as required by the 2006 amendment to section 45.031, Florida Statutes. Changes are also made based on 2008 amendments to section 45.031, Florida Statutes, permitting courts to order sale by electronic means. Additional changes were made to bring the form into compliance with chapters 718 and 720 and section 45.0315, Florida Statutes, and to better align the form with existing practices of clerks and practitioners....
CopyCited 4 times | Published | United States Bankruptcy Court, S.D. Florida. | 1987 Bankr. LEXIS 1472
...Florida National, through its subsidiary, WNO, Inc., was the successful bidder at the sale. Debtor commenced these related Chapter 11 proceedings on July 13, 1987 (the "Filing Date"). The Filing Date represented the last day in which the Debtor could have redeemed its interest in the Property. Section 45.031, Florida Statutes, provides a right of redemption to the foreclosed owner of property during the ten days following a foreclosure sale....
CopyCited 4 times | Published | United States Bankruptcy Court, S.D. Florida. | 10 Fla. L. Weekly Fed. B 68, 1996 Bankr. LEXIS 1110
...FACTS Financial Federal Savings and Loan Association of Dade County ("Mortgagee") held a mortgage on Debtor's principal residence. Mortgagee began a foreclosure action against Debtor and obtained a final judgment in state court which set a foreclosure sale pursuant to the judicial sales procedure in § 45.031, Florida Statutes....
...t with the reasoning of Glenn." Id. Debtor attempts to distinguish Jaar based upon language in the state court's final judgment which purportedly extended her right of redemption until issuance of the certificate of title. The argument is based upon § 45.0315, Florida Statutes, which provides that a mortgagor may cure a mortgage and prevent a foreclosure sale by paying the amount of moneys specified in the judgment "before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment . . ." § 45.0315 (emphasis added)....
...red a lump sum cash payment and could not be modified by curing and reinstating the mortgage in a Chapter 13 plan.
85 F.3d at 1560-61. The redemption right under Florida law similarly requires "paying the amount of monies specified in the judgment." §
45.0315, Florida Statutes....
CopyCited 4 times | Published | District Court, M.D. Florida | 1992 U.S. Dist. LEXIS 17507, 1992 WL 334059
...If the total amount due and all costs advanced subsequent to this judgment are not paid by Defendant within thirty (30) days the Court orders that the mortgage be foreclosed and the property sold to satisfy Plaintiff's lien, in accordance with the provisions of Section 45.031, Florida Statutes....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1984 Fla. App. LEXIS 13394
...r mortgagee made a party defendant to the foreclosure action. Rodriguez, however, relies upon the applicable statute which provides that "when a person has an equity of redemption, ... the person may redeem the property at any time before the sale." §
45.031(1), Fla. Stat. (1983). This statute has been construed to mean that redemption can be made up until the time the certificate of title is issued in accordance with section
45.031(3). Allstate Mortgage Corp. of Florida v. Strasser,
277 So.2d 843 (Fla. 3d DCA), aff'd,
286 So.2d 201 (Fla. 1973). In Allstate Mortgage, however, we held that section
45.031 must be strictly construed and will not be interpreted to displace the common law further than is clearly necessary....
CopyCited 4 times | Published | United States Bankruptcy Court, S.D. Florida. | 56 Collier Bankr. Cas. 2d 315, 19 Fla. L. Weekly Fed. B 198, 2006 Bankr. LEXIS 792
...sure Sale and to Vacate and/or Set Aside Certificate of Sale ("Objection to Sale") in the Circuit Court of Miami-Dade County seeking to Vacate the Foreclosure Sale and Certificate of Sale, objecting to the foreclosure sale as set forth in Fla. Stat. § 45.031(4), the effect of which Objection to Sale was to delay issuance of the Certificate of Title to the successful bidder at the foreclosure sale Pioneer Investment Enterprises, Inc....
...The Debtor's Right of Redemption Under Florida law, a homeowner's right of redemption is terminated on the *772 "later of the filing of a certificate of sale by the Clerk of the Court or the time specified in the judgment, order or decree of foreclosure..." Fla. Stat. § 45.0315. However, if an objection to sale is filed within 10 days after the filing of the certificate of sale, the objecting party is entitled to have that objection heard before a certificate of title can be issued. See Fla. Stat. § 45.031(4); see also Nelson v....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2011 WL 711061
...Wells Fargo contends that the document was sent directly to the presiding judge’s chambers and that it was riot docketed in accordance with Florida Rule of Civil Procedure 1.080(e). Because the clerk of court did not realize that there was a pending objection, it is *176 sued a certificate of title to Avi-Isaac. See § 45.031(5), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...ess" and denied petitioners' motion for order pursuant to mandate. Sub judice the issue is whether the Petersons had a right of redemption in light of our reversal of the trial court's order which vacated the judicial sale. Prior to the amendment to Section 45.031(1), Florida Statutes (1971), the statute did not mention a right of redemption....
...f title. [1] In Done Investments, N.V. v. Forman,
369 So.2d 650, 651 (Fla. 3d DCA 1979), the court said: Our review of the record shows that the trial court partially adopted, as it was permitted to do, the procedures for judicial sales set forth in Section
45.031. Here the final judgment, contrary to the provisions of Section
45.031, fixed a specific time for redemption....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 19495
...e of this judgment, on affidavit of non-payment by the Plaintiff, the Clerk of this Court shall issue a Notice of Sale for the sale of the above described property at public sale to the highest bidder in accordance with the Judicial Sales Procedure, Section 45.031, Florida Statutes....
CopyCited 4 times | Published | District Court, S.D. Florida | 1993 U.S. Dist. LEXIS 18959, 1993 WL 563843
...tes of Title and Judge Marcus noted that the expiration of the Florida redemption period is accomplished only when the Clerk files a certificate of title and serves a copy of it on each party not in default. In re Outten at pg. 12, citing, Fla.Stat. § 45.031(4); Allstate Mortgage Corporation of Florida v....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1990 WL 197981
...*1376 It is obvious from our review of the record that the trial court is becoming frustrated with the delaying tactics of the defendants. Nevertheless, adherence to the applicable statutory provisions must be observed before the certificate of title can issue. Section 45.031(4), Florida Statutes, provides for issuance of a certificate of title within 10 days by the clerk if no objections to the sale are filed within that time....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 2325
...ut before the court issued the certificate of title. See Allstate Mortgage Corp. v. Strasser,
286 So.2d 201 (Fla. 1973); Cooper Smith Properties, Ltd. v. Flower's Baking Co.,
432 So.2d 683 (Fla. 5th DCA), review dismissed,
438 So.2d 831 (Fla. 1983); §
45.031(1), Fla....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 1987 Bankr. LEXIS 1206
...h prevented a full, fair public auction of the property. The amount bid at the sale is conclusively presumed to be sufficient consideration absent objection by any party within 10 days after the issuance of the clerk's certificate of sale. Fla.Stat. § 45.031(8)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal
...We reverse and remand for entry of judgment awarding a deficiency for the total amount claimed. The final judgment of foreclosure adjudicated that appellant/mortgagee was entitled to $1,026,110.10 for principal, interest, and costs. At the judicial sale held pursuant to court order under section 45.031, Florida Statutes, (1981), the security property was sold to a third party for $520,200 cash....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 8768, 2015 WL 3609892
...4th DCA 1991).
"[A] purchaser takes title subject to defects, liens, incumbrances, and all matters of
which he has notice, or of which he could obtain knowledge in the exercise of ordinary
prudence and caution." Cape Sable Corp. v. McClurg,
74 So. 2d 883, 885 (Fla. 1954)
(emphasis added). Further, although section
45.031(5), Florida Statutes (2013),
provides for the filing of objections to a judicial sale within ten days, "the substance of
- 13 -
an objection to a foreclosure sale under section
45.031(5) must be directed toward
conduct that occurred at, or which related to, the foreclosure sale itself." Skelton, 157
So....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2005 WL 1364851
...The evidence must support an award for damages. John Hancock Mut. Life Ins., Co. v. Mark-A, Inc.,
324 So.2d 674 (Fla. 2d DCA 1975). *333 Finally, we find that the trial court did not abuse its discretion in declining to order a sale of property pursuant to section
45.031, Florida Statutes....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1990 WL 7629
...Grissett and the other interested defendants, none of which were appellee W.E. Grissett, Jr., P.A. (appellee P.A.). Subsequently, notice of sale was twice advertised, and on June 9, 1989 the clerk of the court conducted a public sale of the property in accordance with section 45.031, Fla....
...th the Grissetts, and (4) the answer filed by the Grissetts was signed by the P.A. The lease was for a term of ten years and was unrecorded. The court denied the motion for writ of assistance and granted appellee P.A. time to redeem the foreclosure. Section 45.031(1), Fla....
...any time before the sale. In Allstate Mortgage Corporation of Florida v. Strasser,
286 So.2d 201, 203 (Fla. 1973) the supreme court construed the word "sale" in the statute to mean when transfer of ownership of the property takes place which, under section
45.031(3), is "`ten days after the day of the sale, upon no objections being filed thereto and issuance of the certificate of title.'" (quoting Allstate Mortgage Corporation of Florida v....
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 1985 Bankr. LEXIS 5474
...matic stay. Both NCNB and the Debtor agree that under Florida law, title to real property sold at public auction, pursuant to a Final Judgment of Foreclosure does not pass to the purchaser until the Clerk of the Court files a Certificate of Title, F.S. 45.031(4) 1984....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2014 WL 1632241, 2014 Fla. App. LEXIS 6018
...Bondurant a total of 0.5 hours (at $175 per hour) to draft a certificate of sale and a certificate of title even though these tasks could likely have been performed by a paralegal at a lower hourly rate since there are statutory forms for the certificates. See § 45.031(4)-(5), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 12917, 2010 WL 3446871
...an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent him there for that purpose was not present.” Van Delinder v. Albion Realty & Mortgage, Inc.,
287 So.2d 352, 353 (Fla. 3d DCA 1973). Section
45.031(8), Florida Statutes (2009), provides that objections based on the amount of the bid may be filed within ten days after the clerk files a certificate of sale, and “[i]f timely objections to the bid are served, the objections shall be heard by the court.” (Emphasis added)....
...y interested party to address those objections.” Shlishey the Best, Inc. v. Citi-Financial Equity Servs., Inc.,
14 So.3d 1271, 1276 (Fla. 2d DCA 2009); see Nelson v. Santora,
570 So.2d 1374, 1376 (Fla. 1st DCA 1990) (interpreting former version of section
45.031(8) to require court to hold actual hearing on any objections)....
...Charlotte County,
842 So.2d 142, 146 (Fla. 2d DCA 2003). Consequently, we do not hold that a court may only “hear” objections to a foreclosure sale at an in-court proceeding with counsel physically present. Still, we are confident that the term “heard” in section
45.031(8) does not contemplate that objections to a foreclosure sale are to be decided ex parte and without notice to all interested parties....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 15383, 2011 WL 4467534
...The defendants argue that the court erred in denying their motion because the clerk of court issued the certificate of title while their objections to the sale were pending and because the court did not conduct an evidentiary hearing on their objections. We agree with the defendants’ arguments and reverse. Compare § 45.031(5), Fla. Stat. (2010) (“If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title .... ”), with § 45.031(8), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1990 WL 49845
...tained. Fara Mfg. Co. v. First Fed. S & L Ass'n,
366 So.2d 164 (Fla. 3d DCA 1979), cited with approval in Thunderbird, Ltd. v. Great Am. Ins. Co.,
566 So.2d 1296, 1299 (Fla. 1st DCA 1990), clarified,
566 So.2d 1296, 1305 (Fla.1st DCA 1990). See also §
45.031(8), Fla....
...he date of our appraisal." The foregoing testimony is evidence that the witness considered changes subsequent to the appraisal. [3] The bid price at foreclosure sale "may be considered by the court as one of the factors in determining a deficiency," § 45.031(8), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2009 WL 690661
...No brief filed for appellees. *407 GROSS, C.J. This case involves the competing fee claims of the assignee of a foreclosed property owner and a surplus trustee appointed by the clerk of the court. To decide the case, we must construe the provisions of sections 45.031-45.034, Florida Statutes (2007)....
...ng 6% of the surplus funds and Homeworks 4% of the money. The court ordered the remaining 90% of the surplus to be disbursed to Tracy. National Equity challenges this order on appeal. The primary purpose of the surplus trustee provisions of sections 45.031 to 45.034 is to provide a mechanism to locate the owner of record so that a surplus can properly be distributed....
...g the owner's exposure to fees and costs at twelve percent. See §§
45.033(3)(e), 45.034(7), Fla. Stat. (2007). After a foreclosure sale, the clerk must file a certificate of disbursements specifying the total disbursements and the surplus, if any. §
45.031(7)(b), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...Ause Brown, Jr., Gainesville, for appellees. MILLS, Judge. This appeal arises out of a mechanic's lien foreclosure suit. Appellees, defendants-property owners below, allowed a default to be taken against them. Appellant was the successful bidder at the sale which was held under Section 45.031, Florida Statutes....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 25 Fla. L. Weekly Fed. B 17, 2014 Bankr. LEXIS 2448, 2014 WL 2566911
...21 Debtor argues his interest in the Property is lost only after issuance of a Certificate of Title, not the Certificate of Sale, and the Court’s ability to strip the lien is the same as if the request had made before the foreclosure sale had occurred. Florida’s judicial foreclosure procedures, set forth in Section 45.031 of the Florida Statutes, authorize the sale of real property at public auction pursuant to a final judgment of foreclosure....
...23 “If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title and serve a copy of it on each party....” 24 Title to the property passes to the purchaser when the certificate of title is filed and “the sale shall stand confirmed.” 25 Section 45.031 of the Florida Statutes explicitly empowers a court in the final judgment of foreclosure to fix the time in which the mortgagor may redeem....
...Any objection to the sale does not affect or cloud the title of the purchaser in any manner. 43 The issuance of the certificate of title is merely a ministerial act required to complete the formal transfer of legal title. 44 The substance of an objection to a foreclosure sale under Section 45.031(5) must be directed toward conduct that occurred at, or which related to, the foreclosure sale itself....
...14. . Association’s Exhibit 7. . Association's Exhibit 8. . Doc. No. 21. . Doc. No. 13. . All references to the Bankruptcy Code or the Code refer to 11 U.S.C. Section 101 , et seq. . 477 Fed.Appx. 562 (11th Cir.2012). . Doc. No. 17. . Fla. Stat. § 45.031 (2014). . Fla. Stat. §§ 45.031 (2), (5) (2014). . Fla. Stat. § 45.031 (5) (2014). . Fla. Stat. § 45.031 (6) (2014). . Fla. Stat. § 45.0315 (2014). . Fla. Stat. § 45.0315 (2014); See Emanuel v....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 10881
...Thus, the deficiency proceeding, rather than being an action on a
consumer debt that has been reduced to judgment, is actually an action to enforce the
result of a foreclosure proceeding and obtain a money judgment. See Royal Palm,
89
So. 3d at 928, 929-30; cf. §
45.031(1)(a), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal
...onsideration in
determining whether a deficiency decree should be entered. However, the court
cited to section
702.06, Florida Statutes (2018), which governs mortgage
foreclosures. As this was the foreclosure of an equitable lien and not a mortgage,
section
45.031 sets the procedures. Section
45.031(8), Florida Statutes (2018),
provides in part: “If the case is one in which a deficiency judgment may be sought,
and application is made for a deficiency, the amount bid at the sale may be
considered by the court as one of the factor...
CopyCited 2 times | Published | District Court, S.D. Florida | 2014 U.S. Dist. LEXIS 26875, 2014 WL 721486
...f under the Note and Mortgage are not paid immediately, the Court foreclose the Mortgage and the Clerk of the Court sell the Property securing the indebtedness to satisfy Plaintiffs mortgage lien in accordance with the provisions of Florida Statutes § 45.031 (2006) ......
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 2224, 2008 WL 441948
...ether with reasonable attorney's fees and costs of the suit as to which the Court reserves jurisdiction to enter supplementary relief on behalf of [Duncan], the Clerk of the Court shall advertise for and conduct a foreclosure sale in accordance with Section 45.031(1), Florida Statutes....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2005 WL 991713
...Van Delinder v. Albion Realty & Mortgage, Inc.,
287 So.2d 352 (Fla. 3d DCA 1974); Subsaro v. Van Heusden,
191 So.2d 569 (Fla. 3d DCA 1966). [8] Saidi v. Wasko,
687 So.2d 10 (Fla. 5th DCA 1996); Emanuel v. Bankers Trust Co.,
655 So.2d 247 (Fla. 3d DCA 1995). [9] §
45.0315, Fla. Stat. See Cueto v. Manufacturers & Traders Trust Co.,
791 So.2d 1125 (Fla. 4th DCA 2000); Indian River Farms v. YBF Partners,
777 So.2d 1096 (Fla. 4th DCA 2001). [10] §
45.031(4), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2004 WL 868505
...On appeal, JRBL correctly argues that the trial court was without the authority to extend the right of redemption past the time specified by the legislature. Maiello has not appealed the trial court's denial of her motion to set aside the judicial sale. Section 45.0315, Florida Statutes (2003), provides: At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of a...
...Thus, the right of redemption extends until the later of the filing of a certificate of sale by the clerk or the time specified in the final judgment. The final judgment in this case specifies that the right of redemption extends until the clerk files the certificate of sale, as provided in section 45.0315....
...Thus, Maiello's right of redemption expired on June 9, 2003. At that point, the only way for Maiello to have her redemption rights revested was to get the judicial sale set aside. After the certificate of sale is filed, a party has ten days in which to file an objection to the sale. § 45.031(4), Fla....
...Thus, Maiello's redemptive rights, which expired on June 9, 2003, did not revest. *364 Although the court declined to set aside the judicial sale in this case, it extended the equity of redemption for two weeks. However, under the plain language of section 45.0315, the trial court was without the authority to extend the right of redemption after the time for redemption had expired....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1992 WL 73501
...Amlong & Amlong, P.A.,
563 So.2d 758 (Fla. 4th DCA 1990). Neidermiller is appellant's daughter. Following that sale, Loschiavo filed a complaint to partition the property. Ultimately, the court ordered a partition sale for October 8, 1990, at 11:00 a.m., and a notice of sale under section
45.031, Florida Statutes, was published....
CopyCited 1 times | Published | Supreme Court of Florida
District Court of Appeal concluded that, under section
45.031, the subordinate lienholder's claim was untimely
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 15554, 2010 WL 3985027
...STL Realty, LLC appeals from an order denying its motion to intervene in this mortgage foreclosure action in order to compel the Clerk of the Lower Tribunal to release funds deposited in excess of that required by law made as part of a foreclosure bid. See § 45.031(2), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2012 WL 5933055, 2012 Fla. App. LEXIS 20336
...Nor was an appropriate motion under Rules 1.530 or 1.540 ever filed to modify the final foreclosure judgment. Further, because Vargas raised no issues regarding either the pending sale of the subject property or his ownership rights, there was nothing for the lower court to consider once this judgment became final. 5 See § 45.031, Fla. Stat. (2012) (governing judicial sales procedure); § 45.0315, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 7017, 2010 WL 2008828
...Both motions to cancel the sale were denied by the Court without providing any ruling of law as to the denials. .... 13. An Objection to Sale was timely filed by the Plaintiff on 05/19/2009, which is five (5) days after the sale, well within the ten (10) days in compliance with Fla. Stat. 45.031....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 3904, 2010 WL 1135900
...Palacios' pending motion to return his money. Mr. Palacios then amended his pending motion to change tack, [1] claiming that the *169 amended final judgment of foreclosure and foreclosure sale should be vacated because the judgment was substantially modified after the sale was held. He cited section 45.031, Florida Statutes (2007), which states that a judicial sale will be held no sooner than twenty days after entry of the final judgment....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1975 Fla. App. LEXIS 14306
...rtheless, ordered the clerk to proceed with the foreclosure as previously scheduled. The defendant’s property was sold and a certificate of sale in favor of Dan and Annette Macre was filed. On January 27, 1975, the defendant, pursuant to Fla.Stat. § 45.031(3), filed objections contending his petition in bankruptcy precluded any judicial sale subsequent to the filing of his petition....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...At the sale the appellee-mortgagee purchased the property for $1,000.00. The appellant-mortgagor now claims that it is entitled to timely redeem the property for $1,000.00. There are no Florida appellate opinions on this limited issue. Appellant-mortgagor contends, however, that Section 45.031(7), Florida Statutes (1975), is determinative in that it provides, "the amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale". This provision has no application to the present issue. Section 45.031(7) only establishes that the amount bid for the property is sufficient consideration....
CopyCited 1 times | Published | United States Bankruptcy Court, N.D. Florida | 1987 Bankr. LEXIS 1230
...In June of 1985, the mortgage and note fell into default and on November 1, 1985, FMNA instituted suit to foreclose. A final judgment was entered January 7, 1986, and established FNMA's lien in the amount of $56,477.10. A public sale was conducted February 11, 1986, pursuant to Section 45.031, Florida Statutes, at which FNMA purchased the property for $1,000.00....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 WL 3449645
...tatute. • Section
45.032 In 2006, the legislature revised the provisions of chapter 45 and created section
45.032 to provide for disbursement of surplus funds after a judicial foreclosure sale. See ch. 2006-175 § 2, at 6-8, Laws of Fla.; see also §
45.031(7)(d) (“If there are funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section and ss.
45.0315-45.035.”)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 229, 2016 WL 72531
...3
The appellant argues that the trial court erred in vacating the certificate
of sale and certificate of title because an objection to the foreclosure sale
was not made within ten days of the sale, as required by section
45.031(5),
Florida Statutes (2013). Applying our decision in CCC Properties, Inc. v.
Kane,
582 So. 2d 159 (Fla. 4th DCA 1991), we reject the argument. In
Kane, we held that the third-party’s failure to object pursuant to section
45.031(4), which later was renumbered to subsection (5), did not mean
that the certificate of title could not be vacated. Id. at 161. We explained:
[W]e also find that failure to file an objection to confirmation
based upon the redemption does not prevent cancellation of
the certificate [of title]. Section
45.031(4), Florida Statutes
(1989) provides that any objections to the sale be filed with
the clerk prior to the issuance of the certificate of title....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 38 Media L. Rep. (BNA) 1339, 2010 Fla. App. LEXIS 8, 2010 WL 21170
...computation, the computation of days provided by a statute is governed by rule 1.090(a), as stated in its express language); Op. Att'y Gen. Fla. 94-37 (1994) (advising that the five-day time computation period for publication of notice of sale under section 45.031(1), Florida Statutes (1993), should be computed by using rule 1.090(a))....
CopyCited 1 times | Florida 6th District Court of Appeal
...that “[t]he Florida Legislature
has enacted comprehensive laws governing surplus funds after judicial sales of
property.” Rapid Surplus Recovery LLC v. Se. Prop. Acquisitions LLC,
420 So. 3d
1151, 1151 n.* (Fla. 1st DCA 2025); see generally §§
45.031,
45.032,
45.033, Fla
Stat....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 1777, 2015 WL 574248
...On the second issue, this court will typically defer to a trial court's order
setting aside a judicial sale. Sulkowski v. Sulkowski,
561 So. 2d 416, 418 (Fla. 2d DCA
1990). However, while a borrower is allowed to object to a foreclosure sale under
section
45.031, Florida Statutes (2013), "the substance of an objection to a foreclosure
sale under section
45.031(5) must be directed toward conduct that occurred at, or which
related to, the foreclosure sale itself." IndyMac Fed....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1997 Fla. App. LEXIS 14113, 1997 WL 777718
...Once Boatman's discovered that an incorrect date was published, Boatman's remedy was to get a new sale date and re-publish the notice of sale, not get the final judgment amended. Blatchley does not contend that he was ready, willing and able to pay the judgment amount on January 9, or on any other date. Section 45.031 required that the final judgment of foreclosure specify a day for the sale and that the notice of sale be published for two weeks, the second of which publication "shall be at least 5 days before the sale." This requirement was not met....
...ained. There is nothing to be accomplished by reversing for a new judgment and sale date as Blatchley could not redeem when given the chance and failed to even allege he would redeem if we reverse. AFFIRMED. COBB and PETERSON, JJ., concur. NOTES [1] Section 45.031(4) provides, "If no objections to the sale are filed within ten days after filing the certificate of sale, the clerk shall file a certificate of title and serve a copy of it on each party not in default...."
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...le (and in effect precluding the exercise of the right of redemption) this appeal ensued. Essentially, the question presented for this court's determination is whether the right of redemption must be exercised "before the sale", as set forth in F.S. Section 45.031(1), F.S.A., which provides, in part, as follows: "In cases when a person has an equity of redemption, the court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale." (Emphasis...
...evails. ... * * * * * * "... we hereby find that the Legislature intended to adopt the recognized meaning of the word `sale' and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to § 45.031(3), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2017 WL 1493788, 2017 Fla. App. LEXIS 5795
...I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER. SLEET, Judge. The Bank of New York Mellon appeals the trial court’s order denying its claim for surplus funds from a foreclosure sale. 1 Because the bank’s claim was untimely, we affirm. Under section 45.031(7)(b), Florida Statutes (2015), any person claiming a right to surplus funds must file a claim with the clerk of court within sixty days of the foreclosure sale....
...n and *1286 obvious meaning.” Gulf Atl. Office Props., Inc. v. Dep’t of Revenue,
133 So.3d 537, 539 (Fla. 2d DCA 2014) (quoting Hess v. Walton,
898 So.2d 1046, 1049 (Fla. 2d DCA 2005)). This court has previously explained that “the language in section
45.031(7)(b) is clear and unambiguous: any person claiming a right to the surplus funds must file a claim with the clerk no later than sixty days after the sale.” Dever v. Wells Fargo Bank Nat’l Ass’n,
147 So.3d 1045, 1047 (Fla. 2d DCA 2014); see also Mathews,
139 So.3d at 500 (“The language of section
45.031(7)(b) is clear and unambiguous in requiring that any person claiming a right to the surplus funds ‘MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE.’ ” (emphasis omitted)). This subsection only refers to the “sale,” not the “certificate of sale.” §
45.031(7)(b). This is significant because section
45.031 assigns particular and distinct meanings to the terms “sale” and “certificate of sale” and does not use them interchangeably. See §
45.031(4) (“After a sale of the property the clerk shall promptly file a certificate of sale and serve a copy of it on each party .......
...sale—instead of the actual sale itself—would render subsection (4) meaningless and would confuse the meaning of other subsections of the statute. Additionally, such a reading would be inconsistent with this court’s prior case law interpreting section
45.031(7)(b), In Mathews, this court explained that the bank “was required to file a claim with the clerk within sixty days after the sale of the property to preserve any claim it may have had to the surplus funds.”
139 So.3d at 500 (emphasis added)....
...However, we recognize that our holding in this opinion conflicts with the Fourth District’s holding in Straub. Therefore we must certify conflict. And we note that construing the term “sale” to refer to the issuance of the certificate of title confuses the meaning of several subsections of section 45.031. See, e.g., § 45.031(l)(a) (requiring the trial court to “direct the clerk to sell the property at a public sale” and stating that “[a] sale may be held more than 35 days after the date of final judgment”); .031(2) (requiring publication of a “[njotice of sale” that “shall contain ......
...148, 154 (Bankr. M.D. Fla. 1995), and Shlishey the Best, Inc. v. CitiFinancial Equity Services, Inc.,
14 So.3d 1271, 1275 (Fla. 2d DCA 2009)—are inapplicable here because they both concern a mortgagor’s right of redemption, which is governed by section
45.0315, not section
45.031....
...LaROSE and BADALAMENTI, JJ., Concur. . Diane and Mark Glenville were the property owners and defendants in the foreclosure action. They are entitled to the surplus funds remaining with the clerk more than sixty days after the foreclosure sale pursuant to section 45.031(7)(b), Florida Statutes (2015).
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 9419
...Said motion was heard on August 12, 1991, at which time appellee filed the original documents with the court. The motion to vacate was denied and the matter proceeded to sale on August 12th. Thereafter, on August 22, 1991, appellant filed an “Objection to the Foreclosure Sale Under Florida Statute 45.031,” which set forth as grounds therefor that the trial court had altered or amended the final judgment of foreclosure by accepting the filing of the note and mortgage with the court....
CopyPublished | Supreme Court of Florida | 1971 Fla. LEXIS 3316
...the clerk of this court shall sell the property at public sale on _, 19_, between 11:00 A.M. and 2:00 P.M., to the highest bidder for cash, except as set forth hereinafter, at the - door of the courthouse in _ County in -, Florida in accordance with section 45.031, Florida Statutes....
CopyPublished | Supreme Court of Florida | 1980 Fla. LEXIS 4428
...the clerk of this court shall sell the property at public sale on -, 19 — , between 11:00 A.M. and 2:00 P.M., to the highest bidder for cash, except as set forth hereinafter, at the_door of the courthouse in_County in_, Florida, in accordance with section 45.031, Florida Statutes (1979)....
CopyPublished | Florida 1st District Court of Appeal | 1997 Fla. App. LEXIS 11437, 1997 WL 615868
...We quash the trial court’s order granting Midfirst Bank’s motion for writ of possession. The writ of possession and certificate of title cannot issue until the trial court resolves Petitioners’ outstanding objection filed timely after the foreclosure sale. See § 45.031(4), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Waters (Orlando), for appellee.
Before LINDSEY, HENDON and BOKOR, JJ.
PER CURIAM.
Affirmed. IndyMac Fed. Bank FSB v. Hagan,
104 So. 3d 1232, 1236
(Fla. 3rd DCA 2012) (“Florida case law is clear that the substance of an
objection to a foreclosure sale under section
45.031(5) must be directed
toward conduct that occurred at, or which related to, the foreclosure sale
itself.”).
2
CopyPublished | Florida 3rd District Court of Appeal | 2004 Fla. App. LEXIS 14821, 2004 WL 2238080
...1.530(g); Harbor Bay Condos., Inc. v. Basabe,
856 So.2d 1067 (Fla. 3d DCA 2003). In addition, the trial court was without authority to extend the period of redemption. Here, it is undisputed that the Tenants’ right of redemption expired upon filing of the certificate of sale. §
45.0315, Fla....
...Upon the readvertisement and resale, a mortgagor’s lost redemptive rights temporarily revest.” JRBL Dev., Inc. v. Maiello,
872 So.2d 362, 363 (Fla. 2d DCA 2004) (citations omitted); Emanuel v. Bankers Trust Co.
655 So.2d 247, 249-50 (Fla. 3d DCA 1995). However, the Tenants’ objec *449 tion to the sale, §
45.031(4), Fla. Stat. (2003), provided no basis for relief. “The purpose of [section
45.031(4)] is to afford a mechanism to assure all parties and bidders to the sale that there is no irregularity at the auction or any collusive bidding, etc.” Emanuel
655 So.2d at 250 ....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 21247
...dge. Pursuant to the entry of a final judgment of foreclosure, the Clerk of the Circuit Court in and for Alachua County held a foreclosure sale at which a third-party bidder submitted the highest and best bid. After performing his duties provided in Section 45.031(1), Florida Statutes, the Clerk issued his certificate of disbursements of proceeds of the sale....
...gment. Ap-pellee, the mortgagee, timely filed an objection to the Clerk’s entitlement to the registry fee. The trial court entered its order requiring the Clerk to pay over to the mortgagee the $149.60 sum, holding that the $25 fee provided for in Section 45.031(1) was the only fee to which the Clerk was entitled....
...administering judicial sales other than the $25 fee. As a part of his duties in handling the sale, the Clerk must receive the purchase money and then disburse it in accordance with the court’s order on final judgment. For the services he performs, Section
45.031 allows him the $25 service charge. This fee for handling a judicial sale is obviously an alternate fee to the Section
28.24 general schedule of the Clerk’s service charges. Section
28.24 governs the general charges, but Section
45.031 governs the particular charge for a judicial sale....
...try of the court. Taylor involved money placed in the registry of the court under the eminent domain statute and with the particular wording of that statute and not with a judicial sale. The eminent domain statute provided no alternative fee as does Section 45.031 with which we are here concerned....
...For the *788 reasons we have heretofore stated, we find that the fee provided for the Clerk for his services in administering a judicial sale is clearly an alternative to an exception to the general fees set forth in Section
28.24. We, therefore, conclude that Section
45.031(1) provides the exclusive charge for the Clerk’s services in connection with the sale of real or personal property by forced sale....
CopyPublished | Supreme Court of Florida | 2000 Fla. LEXIS 2312, 2000 WL 1472356
...■.■■■■■■;-.,■ 19■■■■■■■ — ... .(date)...between 11:00 a.m. and 2:00 p.m. to the highest bidder for cash, except as prescribed in paragraph 4, at the .... door of the courthouse in . County in ., Florida, in accordance with section 45.031, Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal
...2
[Ocean Bank]: Judge, respectfully, over Ocean Bank’s
objection.
Thus, the foreclosure sale was rescheduled for October 30, 2018. Ocean Bank filed
a timely notice of appeal on August 3, 2018.
Pursuant to section 45.031, Florida Statutes (2018), a foreclosure sale is to
be conducted “not less than 20 days or more than 35 days after the date” of the
order or judgment. § 45.031(1)(a)....
...Othon,
190 So. 3d 110, 111
(Fla. 4th DCA 2015) (explaining that neither the wife’s medical problems nor the
fact that the respondents listed their property in hopes of obtaining a short sale are
grounds to cancel the foreclosure sale in contravention of section
45.031(1)(a)).
Because the August 8, 2018 foreclosure sale date has already passed, the
relief requested by Ocean Bank is no longer available....
CopyPublished | Florida 3rd District Court of Appeal
...
292 So. 3d at 41).
2
We also affirm the trial court’s postjudgment order overruling
Morburger’s objections to the foreclosure sale and directing the clerk to issue
the certificate of title. See §
45.031, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 17464
provided: “The sale shall be held in accordance with §
45.031 Fla. Stat. (1995), and upon the Clerk filing the
CopyPublished | Florida 4th District Court of Appeal
...Wargo of Wargo & French, LLP, Miami,
for appellee JP Morgan Chase Bank, N.A.
STEVENSON, J.
We affirm the lower court’s order disbursing the surplus proceeds to
subordinate lienholders following a foreclosure sale. We write to clarify
that, under section 45.031, Florida Statutes (2014), a foreclosure sale
takes place when ownership of the property is transferred upon issuance
of the certificate of title....
CopyPublished | District Court, M.D. Florida
...due [the mortgagee] under the Mortgage and Note are not paid immediately, the Court foreclose the Mortgage and the Clerk of the [State] Court sell the Property.. .to satisfy the.. .mortgage lien in accordance with the provisions of Florida Statutes § 45.031 (2006); ......
CopyPublished | District Court of Appeal of Florida
of an objection to a foreclosure sale under section
45.031(5) must be directed toward conduct that occurred
CopyPublished | Florida 3rd District Court of Appeal | 2014 WL 6465686
... A final judgment of foreclosure was rendered by the trial court in this case
on October 16, 2013. No appeal was taken from the final judgment.
On June 24, 2014, the trial court issued a certificate of sale for the subject
property.
Pursuant to section 45.031(5), Florida Statutes (2013), objections to the sale
are required to be filed within ten days after the filing of the certificate of sale.
According to the trial court docket, Appellant’s objections to the sale were
filed on...
...In that same order, however, we ordered the
Appellant to show cause as to why the appeal should not be dismissed because the
trial court docket indicates that Appellant’s objections to sale were not filed within
ten days after the filing of the certificate of sale as required by section 45.031(5).
2
On October 22, 2014, Appellant filed a motion seeking a ninety-day
extension of time to file his initial brief.1 Appellant, however, did not respond to
our October 14, 201...
CopyPublished | Florida 4th District Court of Appeal
...A trial court abuses its discretion when there is no competent
substantial evidence to support its findings. Eckert v. Eckert,
107 So. 3d
1235, 1238 (Fla. 4th DCA 2013) (“On this record, permitting relocation is
an abuse of discretion, because there is no competent substantial evidence
to support it.”).
Section
45.031(5), Florida Statues (2019), permits a party to file
objections to the sale within ten days after issuance of the certificate of
sale. §
45.031(5), Fla....
...inadequacy of consideration, surprise, accident, or mistake imposed on
complainant, and irregularity in the conduct of the sale.” Brown,
123 So.
at 561 (emphasis added).
Courts have consistently held that “the substance of an objection to a
foreclosure sale under section
45.031(5) must be directed toward conduct
that occurred at, or which related to, the foreclosure sale itself.” Skelton v.
Lyons, 157 So....
CopyPublished | Florida 3rd District Court of Appeal
...At each of the first five sales, conducted between February 2019 and
December 2019, an affiliate or principal of the mortgagor was deemed the
winning bidder. Following each sale, “final payment [was] not made within
the prescribed period.” § 45.031(3), Fla....
...Historically, the right of redemption did not extend beyond the
sale date. Parker v. Dacres,
130 U.S. 43, 47 (1889). Thus, “[i]t is clear that
the right to redeem after sale, wherever it exists, is statutory.” Id. at 48.
In Florida, the right of redemption is codified within section
45.0315,
Florida Statutes....
...subordinate interest may cure the mortgagor’s indebtedness and
prevent a foreclosure sale by paying the amount of moneys
specified in the judgment, order, or decree of foreclosure . . . .
Otherwise, there is no right of redemption.
§ 45.0315, Fla....
...certificate of sale.” Indian River Farms v. YBF Partners,
777 So. 2d 1096,
1099 (Fla. 4th DCA 2001).
In the instant case, the judgment provided that “[o]n filing the Certificate
of Sale, [the mortgagor’s] right of redemption as proscribed by Florida
Statutes, Section
45.0315 shall be terminated.” The certificate of sale was
filed on March 5, 2020, and, despite having notice of the previously released
funds, there has been no showing the mortgagor attempted to satisfy the
mortgage prior to that date or objected within the statutorily prescribed ten-
day window following the sale. See §
45.031(5), Fla....
...self-executing. 72 Am. Jur. 2d State and Local Taxation § 889. It is equally
true, however, that the right must be timely claimed by tendering the amount
due and owing within the statutorily prescribed period, or “there is no right of
redemption.” § 45.0315, Fla....
...payment and did not do so, and it further failed to timely object to the
procedure of the sale.
Given these circumstances, we conclude the trial court acted within its
discretion in denying the motion to vacate and ordering the clerk to issue the
certificate of title. See § 45.031(5), Fla....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2460, 1985 Fla. App. LEXIS 16625
...The former husband brought a partition action to force the sale of the property. In the final judgment the court found the parties to each have a one-half interest in the property and directed the clerk of the circuit court to offer it at public sale in accordance with section 45.031, Florida Statutes (1983)....
CopyPublished | Florida 4th District Court of Appeal
...The court entered a default against both the homeowners and
the subordinate lienholder.
The court later entered a final judgment of foreclosure in the primary
lienholder’s favor. The final judgment set a foreclosure sale and contained
the following statement in conspicuous type as required by section
45.031(1)(a), Florida Statutes (2012):
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.
§ 45.031(1)(a), Fla....
...section
45.032(2)(f), Florida Statutes (2012):
ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS
FROM THE SALE, IF ANY, OTHER THAN THE PROPERTY
OWNER AS OF THE DATE OF THE LIS PENDENS MUST FILE
A CLAIM WITHIN 60 DAYS AFTER THE SALE.
§
45.031(2)(f), Fla....
...an
amount which exceeded the final judgment amount. The clerk thereafter
posted on its docket a certificate of disbursements stating it had retained
the surplus. The certificate of disbursements also contained the following
statement as required by section 45.031(7)(b), Florida Statutes (2012):
2
If you are a person 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. After 60 days, only the owner
of record as of the date of the Lis Pendens may claim the
surplus.
§ 45.031(7)(b), Fla....
...lienholders who have timely filed a claim.
§
45.032(2), Fla. Stat. (2012) (emphasis added).
Shortly thereafter, the subordinate lienholder filed its claim to the
surplus. In its claim, the subordinate lienholder, in an apparent
acknowledgment of section
45.031’s sixty-day filing period, stated:
“[N]either the Final Judgment nor Certificate of Disbursements . . . were
provided to [the subordinate lienholder]; therefore, [the subordinate
lienholder] never had notice of Fla. Stat. §
45.031 or an opportunity to
timely file a claim.” The subordinate lienholder also argued that the
homeowners “should not be permitted an inequitable windfall simply
because [the subordinate lienholder] missed the 60-day deadline by a few
weeks.”
In response, the homeowners argued that the subordinate lienholder
failed to file a timely claim under sections
45.031(1)(a) and
45.032(2)(f) as
quoted above, and that no extension of time is permitted....
...See Mathews v. Branch Banking & Trust Co.,
139 So. 3d 498,
500 (Fla. 2d DCA 2014) (“The interpretation of a statute is a question of
law, and it is therefore subject to a de novo review.”) (citation omitted).
We agree with the homeowners’ argument. Section
45.031(1)(a)’s plain
language quoted above requires that a subordinate lienholder claiming a
right to surplus to file a claim no later than (or within) 60 days after the
sale, and warns that if the subordinate lienholder fails to file a tim...
...rebuttable legal presumption that the owner is entitled to surplus after
payment of subordinate lienholders who have timely filed a claim.
Here, it is undisputed that the subordinate lienholder did not timely file
its claim. Thus, according to section
45.031(1)(a)’s and section
45.032(2)’s
plain language, the homeowners, and not the subordinate lienholder, are
entitled to the surplus....
...iled to file a claim for the
surplus within sixty days after the sale); Mathews,
139 So. 3d at 500-01
(same).
In its answer brief, the subordinate lienholder seeks affirmance of the
circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
...or if the owner of record
files a claim for the surplus but acknowledges that one or more other persons
may be entitled to part or all of the surplus . . . .”) (emphasis added).
The subordinate lienholder’s first argument – that sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
...agency may not enlarge, modify, or contravene the provisions of a statute,
the ninety-day requirement of the rule must be read as directory and not
mandatory. Id.
DeMario is distinguishable from the instant case for two reasons. First,
unlike the rule at issue in DeMario, sections 45.031(1)(a) and 45.031(7)(b)’s
plain language require the clerk to pay the surplus to only those claims
filed within sixty days of the sale. See § 45.031(1)(a), Fla. Stat. (2012) (“IF
5
YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY
REMAINING FUNDS.”); § 45.031(7)(b), Fla....
...The statutes which contain the sixty-day time limit control here.
The subordinate lienholder’s second argument – that its untimely claim
should be excused because it did not receive a copy of the final judgment
or certificate of disbursements – lacks merit for three reasons. First,
sections
45.031 and
45.032 do not contain any provision permitting a
court to excuse a subordinate lienholder’s untimely claim on the ground
that it did not receive actual notice....
CopyPublished | Florida 3rd District Court of Appeal
...349, 356 (1892)). See also Volynsky v. Park Tree
Invs. 21, LLC,
322 So. 3d 714, 716 (Fla. 3d DCA 2021) (“[T]he trial court
afforded Volynsky both notice and a meaningful opportunity to be heard,
satisfying the essential elements of due process”) (citing §
45.031(8), Fla.
Stat....
CopyAgo (Fla. Att'y Gen. 1990).
Published | Florida Attorney General Reports
publication at the time the sale is conducted. Section
45.031, F.S., provides, in pertinent part, a procedure
CopyPublished | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 1315, 1985 Fla. App. LEXIS 14350
...Appellant, a junior encumbrancer, was joined as a party defendant in appellee Federal Land Bank of Columbia’s foreclosure action. Appellant’s right of redemption of the senior mortgage held by Land Bank was extinguished upon rendition of the foreclosure judgment. Appellant misconstrues Section 45.031(1), Florida Statutes (1983), since the provision for a right of redemption “at any time before the sale” refers to the mortgagor’s right of redemption, and not the right *55 of a junior mortgagee or lienholder, prior to foreclosu...
CopyAgo (Fla. Att'y Gen. 1976).
Published | Florida Attorney General Reports
charges awarded thereunder. AS TO QUESTION 2: Section
45.031, F. S., provides an alternative method of judicial
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 5978, 24 Fla. L. Weekly Fed. D 1171
...her discretion to set it aside. See United Cos. Lending Corp. v. Abercrombie,
713 So.2d 1017 (Fla. 2d DCA 1998). However, as a matter of law, the circumstances of this case cannot sustain the conclusion that Countrywide’s motion was timely filed. Section
45.031, Florida Statutes (1997), requires that objections to a judicial sale be filed within ten days following the sale....
CopyPublished | Florida 4th District Court of Appeal
...***
(d) direct the Clerk of Court to sell the Property which is the
subject matter of this foreclosure to satisfy FIRST
AMERICAN’s Mortgage lien in accordance with the provisions
of Fla. Stat. § 45.031;
(e) direct the Clerk of Court that the proceeds of the sale, the
amounts due and owing to FIRST AMERICAN be paid in full,
including reasonable attorneys’ fees, costs, expenses and pre-
judgment and post-judgment...
CopyPublished | Florida 4th District Court of Appeal | 2017 WL 1177606, 2017 Fla. App. LEXIS 4188
...Appellants argue that the trial court was required to conduct an evidentiary hearing on their objections to the sale, which included an allegation that the sale price was inadequate due to irregularities in the sale process. Appellee has confessed error on this issue. Section 45.031(8), Florida Statutes (2014), allows a party to serve an objection to a sale based on the winning bid price. “If timely objections to the bid are served, the objections shall be heard by the court.” Id. (emphasis added). This Court has previously held that it is error to deny the party objecting under section 45.031(8) an evidentiary hearing....
CopyPublished | Florida 4th District Court of Appeal | 2012 WL 1020171, 2012 Fla. App. LEXIS 4863
...C (“Aurora”) in the amount of $280,982.34 and set a foreclosure sale date of January 5, 2011. The foreclosure judgment required the clerk of the court to sell the property by electronic sale 1 to the highest bidder for cash “in accordance with section 45.031, Florida Statutes.” An electronic foreclosure sale occurred on January 5, 2011....
...Castelo was the successful bidder with a high bid of $6500. 2 The clerk of the court, however, would not issue the certificate of sale or the certificate of title because the notice of sale was not published in advance of the foreclosure sale as required by section 45.031....
...its discretion by effectively vacating the foreclosure sale. We disagree. The trial court’s final judgment of foreclosure required the clerk of the court to sell the property by electronic sale to the highest bidder for cash “in accordance with section 45.031, Florida Statutes.” Section 45.081, Florida Statutes, requires that notice of sale “be published once a week for 2 consecutive weeks in a newspaper of general circulation.” § 45.031(2), Fla....
...A plain reading of the statute, however, supports the trial court’s interpretation that a foreclosure sale should not be confirmed if the notice of sale was not published. Subsection four of the statute dictates that after the sale of the property, the clerk of the court shall promptly file a certificate of sale. § 45.031(4)....
...Thus, if the clerk cannot certify that the notice of sale was published, the clerk should not issue the certificate of sale. Without a certificate of sale, the clerk of the court lacked authority to issue a certificate of title and thereby confirm the sale. § 45.031(5), (6)....
...The trial court, therefore, correctly denied Castelo’s motion to compel the clerk to do so. We also find that the trial court did not abuse its discretion by refusing to confirm the foreclosure sale. Affirmed. GROSS and LEVINE, JJ„ concur. . The Florida Legislature amended section 45.031 in 2008 to allow a clerk of the court to conduct foreclosure sales through electronic means, that is, over the internet....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 3331, 1992 WL 57146
...d ordering the clerk to announce at the sale that only the 60% interest in the real estate owned by Anderson and Crawley was being offered. Although the sale took place, Anderson was successful in having it set aside on the grounds, inter alia, that section 45.031, Florida Statutes (1989), prohibits a sale within twenty days from the date of a final judgment....
CopyPublished | Florida 4th District Court of Appeal
...The court entered a default against both the homeowners and
the subordinate lienholder.
The court later entered a final judgment of foreclosure in the primary
lienholder’s favor. The final judgment set a foreclosure sale and contained
the following statement in conspicuous type as required by section
45.031(1)(a), Florida Statutes (2012):
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.
§ 45.031(1)(a), Fla....
...section
45.032(2)(f), Florida Statutes (2012):
ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS
FROM THE SALE, IF ANY, OTHER THAN THE PROPERTY
OWNER AS OF THE DATE OF THE LIS PENDENS MUST FILE
A CLAIM WITHIN 60 DAYS AFTER THE SALE.
§
45.031(2)(f), Fla....
...an
amount which exceeded the final judgment amount. The clerk thereafter
posted on its docket a certificate of disbursements stating it had retained
the surplus. The certificate of disbursements also contained the following
statement as required by section 45.031(7)(b), Florida Statutes (2012):
If you are a person 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. After 60 days, only the owner
of record as of the date of the Lis Pendens may claim the
surplus.
§ 45.031(7)(b), Fla....
...lienholders who have timely filed a claim.
§
45.032(2), Fla. Stat. (2012) (emphasis added).
Shortly thereafter, the subordinate lienholder filed its claim to the
surplus. In its claim, the subordinate lienholder, in an apparent
acknowledgment of section
45.031’s sixty-day filing period, stated:
“[N]either the Final Judgment nor Certificate of Disbursements . . . were
provided to [the subordinate lienholder]; therefore, [the subordinate
lienholder] never had notice of Fla. Stat. §
45.031 or an opportunity to
timely file a claim.” The subordinate lienholder also argued that the
homeowners “should not be permitted an inequitable windfall simply
because [the subordinate lienholder] missed the 60-day deadline by a few
weeks.”
In response, the homeowners argued that the subordinate lienholder
failed to file a timely claim under sections
45.031(1)(a) and
45.032(2)(f) as
quoted above, and that no extension of time is permitted....
...he parties agreed
to disburse a portion of the surplus to the City of Tamarac, another subordinate
lienholder. That disbursement is not affected by this opinion.
3
We agree with the homeowners’ argument. Section 45.031(1)(a)’s plain
language quoted above requires that a subordinate lienholder claiming a
right to surplus to file a claim no later than (or within) 60 days after the
sale, and warns that if the subordinate lienholder fails to file a tim...
...rebuttable legal presumption that the owner is entitled to surplus after
payment of subordinate lienholders who have timely filed a claim.
Here, it is undisputed that the subordinate lienholder did not timely file
its claim. Thus, according to section
45.031(1)(a)’s and section
45.032(2)’s
plain language, the homeowners, and not the subordinate lienholder, are
entitled to the surplus....
...iled to file a claim for the
surplus within sixty days after the sale); Mathews,
139 So. 3d at 500-01
(same).
In its answer brief, the subordinate lienholder seeks affirmance of the
circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
...or if the owner of record
files a claim for the surplus but acknowledges that one or more other persons
may be entitled to part or all of the surplus . . . .”) (emphasis added).
The subordinate lienholder’s first argument – that sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate
lienholders’ claims to the surplus, pursuant to DeMario v....
...agency may not enlarge, modify, or contravene the provisions of a statute,
the ninety-day requirement of the rule must be read as directory and not
mandatory. Id.
DeMario is distinguishable from the instant case for two reasons. First,
unlike the rule at issue in DeMario, sections 45.031(1)(a) and 45.031(7)(b)’s
plain language require the clerk to pay the surplus to only those claims
filed within sixty days of the sale. See § 45.031(1)(a), Fla. Stat. (2012) (“IF
YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY
REMAINING FUNDS.”); § 45.031(7)(b), Fla....
...The statutes which contain the sixty-day time limit control here.
The subordinate lienholder’s second argument – that its untimely claim
should be excused because it did not receive a copy of the final judgment
or certificate of disbursements – lacks merit for three reasons. First,
sections
45.031 and
45.032 do not contain any provision permitting a
court to excuse a subordinate lienholder’s untimely claim on the ground
that it did not receive actual notice....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 4274, 2015 WL 1334317
...The court entered a default against both *855 the homeowners and the subordinate lien-holder. The court later entered a final judgment of foreclosure in the primary lienholder’s favor. The final judgment set a foreclosure "sale and contained the following statement in conspicuous type as required by section 45.031(l)(a), Florida Statutes (2012): 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. § 45.031(l)(a), Fla....
...type as required by section
45.032(2)(f), Florida Statutes (2012): ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS FROM THE SALE, IF ANY, OTHER THAN THE PROPERTY OWNER AS OF THE DATE OF THE LIS PENDENS MUST FILE A CLAIM WITHIN 60 DAYS AFTER THE SALE. §
45.031(2)(f), Fla....
...At the foreclosure sale, a third party purchased the property for an amount which exceeded the final judgment amount. The clerk thereafter posted on its docket a certificate of disbursements stating it had retained the surplus. The certificate of disbursements also contained the following statement as required by section 45.031(7)(b), Florida- Statutes (2012): If you are a person 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. After 60’ days, only the owner of record as of the date of the Lis Pendens may claim the surplus. § 45.031(7)(b), Fla....
...e lienholders who have timely filed a claim. §
45.032(2), Fla. Stat. (2012) (emphasis added). Shortly thereafter, the subordinate lien-holder filed its claim to the surplus. In its claim, the subordinate lienholder, in an apparent acknowledgment of section
45.031’s sixty-day filing period, stated: “[N]eithér the Final Judgment nor Certificate of Disbursements ... were provided to [the subordinate lienholder]; therefore, [the subordinate lienholder] never had notice of Fla. Stat. §
45.031 or an opportunity to timely file a claim.” The subordinate lienholder also argued that the homeowners “should not be permitted an inequitable windfall simply because [the subordinate lienholder] missed the 60-day deadline by a few weeks.” *856 In response, the homeowners argued that the subordinate lienholder failed to file a timely claim - under sections
45.031(l)(a) and
45.032(2)(f) as quoted above, and that no extension of time is permitted....
...See Mathews v. Branch Banking & Trust Co.,
139 So.3d 498, 500 (Fla. 2d DCA 2014) (“The interpretation of a statute is a question of law, and it is therefore subject to a de novo review.”) (citation omitted). We agree with the homeowners’ argument. Section
45.031(l)(a)’s plain language quoted above requires that a subordinate lienholder claiming a right to surplus to file a claim no later than (or within) 60 days after the sale, and warns that if the subordinate lienholder fails to file.a timely claim, then the subordinate lienholder will not be entitled to any surplus....
...Further, section
45.032(2)’s plain language quoted above establishes a re-buttable legal presumption that the owner is entitled to surplus after payment of subordinate lienholders who have timely filed a claim. Here, it is undisputed that the subordinate lienholder did not timely file its claim. Thus, according to section
45.031(l)(a)’s and section
45.032(2)’s plain language, the homeowners, and not the subordinate lienholder, are entitled to the surplus....
...ch failed to file a claim for the surplus within sixty days after the sale); Mathews,
139 So.3d at 500-01 (same). In its answer brief, the subordinate lien-holder seeks affirmance of the circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate lienholders’ claims to the surplus, pursuant to DeMario v....
...or contravene the provisions of a statute, the ninety-day requirement of the rule must be read as directory and not mandatory. Id. DeMario is distinguishable from the instant case for two reasons. First, unlike the rule at issue in DeMario, sections 45.031(l)(a) and 45.031(7)(b)’s plain language require the clerk to pay the surplus to only those claims filed within sixty days of the sale. See § 45.031(l)(a), Fla....
...The statutes which contain the sixty-day time limit control here. The subordinate lienholder’s second argument — that its untimely claim should be excused because it did not receive a copy of the final judgment or certificate of disbursements — lacks merit for three reasons. First, sections
45.031 and
45.032 do not contain any provision permitting a court to excuse a subordinate lienholder’s untimely claim on the ground that it did not receive actual notice....
...The court entered a default against both the homeowners and the subordinate lien-holder. The court later entered a final judgment, of foreclosure in the primary lienholder’s favor. The final judgment set a foreclosure sale and contained the following statement in conspicuous type as Required by section 45.031(l)(a), Florida Statutes (2012): 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. § 45.031(l)(a), Fla....
...ype as required by section
45.032(2)(f), Florida Statutes (2012): ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS FROM THE SALE, IF ANY, OTHER THAN. THE PROPERTY OWNER AS OF THE DATE OF THE LIS PENDENS MUST FILE A CLAIM WITHIN 60 DAYS AFTER THE SALE. §
45.031(2)(f), Fla....
...At the foreclosure sale, a third party purchased the property for an amount which exceeded the final judgment amount. The clerk thereafter posted on its docket a certificate of disbursements stating it had retained the surplus. The certificate of disbursements also contained the following statement as required by section 45.031(7)(b), Florida Statutes (2012): If you are a person 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....
...nholders who .have timely filed a claim. §
45.032(2), Fla. Stat. (2012) - (emphasis added). Shortly thereafter, the subordinate lien-holder fíléd its claim to the surplus. In its claim, the subordinate lienholder, in an apparent acknowledgment of section
45.031’s sixty-day filing period, stated: “[N]either the Final Judgment nor Certificate of Disbursements ... were provided to [the subordinate lienholder]; therefore, *860 [the subordinate lienholder] never had notice of Fla. Stat. §
45.031 or an opportunity to timely file a claim.” The subordinate lienholder also argued that the homeowners “should not be permitted an inequitable windfall simply because [the subordinate lienholder] missed the 60-day deadline by a few weeks.” In response, the homeowners argued that the subordinate lienholder failed to file a timely claim under sections
45.031(l)(a) and 45,032(2)(f) as quoted above, and that no extension of time is permitted....
...See Mathews v. Branch Banking & Trust Co.,
139 So.3d 498, 500 (Fla. 2d DCA 2014) (“The interpretation of a statute is a question of law, and it is therefore subject to a de novo review.”) (citation omitted). We agree with the homeowners’ argument. Section
45.031(l)(a)’s plain language quoted above requires that a subordinate lienholder claiming a right to surplus to file a claim no later than (or within) 60 days after the sale, and warns that if the subordinate lienholder fails to file a timely claim, then the subordinate lienholder will not be entitled to any surplus....
...Further, section
45.032(2)’s plain language quoted above establishes a re-buttable legal presumption that the owner is entitled to surplus after payment of subordinate lienholders who have timely filed a claim. Here, it is undisputed that the subordinate lienholder did not timely file its claim. Thus, according to section
45.031(l)(a)’s and section
45.032(2)’s plain language, the homeowners, and not the subordinate lienholder, are entitled to the surplus....
...ch failed to file a claim for the surplus within sixty days after the sale); Mathews,
139 So.3d at 500-01 (same). In its answer brief, the subordinate lien-holder seeks affirmance of the circuit court’s order based on three arguments: (1) sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate lienholders’ claims to the surplus, pursuant to DeMario v....
...e 60-day period or if the mmer of record files a claim for the■ surplus but acknowledges that one or more other persons may-be entitled to part or all of the surplus (emphasis added). The subordinate lienholder’s first argument — that sections
45.031 and
45.032 cannot be interpreted as imposing a sixty-day bar for subordinate lienholders’ claims to the surplus, pursuant to DeMario v....
... contravene the provisions of a statute, the ninety-day requirement of the rule must be-read as directory and not mandatory. Id. DeMario is distinguishable from the instant case for two reasons. First, unlike the rule at issue in DeMario , sections 45.031(l)(a) and 45.031(7)(b)’s plain language require the clerk to pay the surplus to only those claims filed within sixty days of the sale. See § 45.'03Í(l)(a), Fla. Stat. (2012) (“IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.”); § 45.031(7)(b), Fla....
...The statutes which contain the sixty-day time limit control here. The subordinate lienholder’s second argument — that its untimely claim should be excused because it did not receive a copy of the final judgment or certificate of disbursements — lacks merit for three reasons. First, sections
45.031 and
45.032 do not contain any provision permitting a court to excuse a subordinate lienholder’s untimely claim on the ground that it did not receive actual notice....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 1136441, 2013 Fla. App. LEXIS 4438
...For the following reasons, we conclude South Beach Mortgage is entitled to disbursal from the $21,000 of interest for the delay occasioned by ANV Investment’s motion to vacate the judgment, but not for resolving the objections. In deciding this case, we must consider Section 45.031, Florida Statutes (2009), which governs judicial sales, and Florida Rule of Appellate Procedure 9.310, which addresses supersedeas bonds. Section 45.031(8) states in pertinent part: “Any party may serve an objection to the amount of the bid within 10 days after the clerk files the certificate of sale....
CopyPublished | Florida 3rd District Court of Appeal
...heard required by procedural due process are not evaluated by fixed rules
of law, but rather by the requirements of the particular proceeding.” Massey
v. Charlotte Cnty.,
842 So. 2d 142, 146 (Fla. 2d DCA 2003) (citations
omitted).
As relevant here, section
45.031(8), Florida Statutes, governing post-
sale objections to the amount of the bid, provides, “[i]f timely objections to
the bid are served, the objections shall be heard by the court.” Although the
statute itself does not expressly...
...As our Legislature has expressly determined, “[a]ny irregularity
in . . . mailing” does “not affect the validity or finality of . . . any sale”
stemming from the final judgment, we conclude the allegation, as penned,
was patently inadequate to support relief in equity. § 45.031(1)(c), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 2457224, 2017 Fla. App. LEXIS 8315
... This appeal arises from a residential foreclosure. The borrowers seek
review of the trial court’s order denying their amended objection to the foreclosure
sale.
The borrowers argue that the notice of the foreclosure sale did not comply
with section 45.031(2), Florida Statutes (2015), which provides:
Notice of sale shall be published once a week for 2 consecutive weeks
in a newspaper of general circulation, as defined in chapter 50,
published in the county where the sale is to be held....
CopyPublished | Florida 3rd District Court of Appeal
...The time frame of the sale is referenced multiple times within the
settlement agreement. Accordingly, even the most cursory reading of the
documents yields the inescapable conclusion that the date, exceeding the
time otherwise afforded to a debtor under Florida law, was part and parcel of
the negotiated terms. See § 45.031(1)(a), Fla....
CopyPublished | Florida 3rd District Court of Appeal
CopyPublished | Florida 3rd District Court of Appeal
CopyPublished | Florida 3rd District Court of Appeal
..., IF ANY, OTHER THAN THE PROPERTY OWNER AS OF THE DATE OF LIS PENDENS MUST FILE A CLAIM WITHIN 60 DAYS AFTER THE SALE . (All capital letters in original; underlining emphasis added). The foreclosure sale occurred on June 21, 2016. In conformity with section 45.031(4) of the Florida Statutes, the clerk, on June 24, 2016, issued a Certificate of Sale informing that the property was sold to third-party purchaser Degel, LLC ("Degel") for $116,100 at the June 21, 2016 foreclosure sale. C. The Certificates of Title and Disbursements Having received no objections to the sale within ten days after the filing of the Certificate of Sale, the clerk, pursuant to section 45.031(5), issued the Certificate of Title on July 8, 2016. Also on July 8, 2016, in conformity with section 45.031(7), the clerk issued the Certificate of Disbursements, identifying a surplus realized by the foreclosure sale in the amount of $41,578.63. As required by section 45.031(7)(b), the Certificate of Disbursements contained the following instructions to Association: IF YOU ARE A PERSON 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 ....
...istrict in Glenville . B. Text of Relevant Statutory Provisions The Florida Statutes prescribe a very specific procedure for foreclosure sales and the disbursement of proceeds generated from foreclosure sales. The relevant procedures are codified in section 45.031, and incorporated into the Florida Supreme Court-promulgated final foreclosure judgment form, Form 1.996....
...7 As with any case involving statutory construction, our goal is to identify the Legislature's intent, and our inquiry begins by consulting the plain meaning of the relevant statute's text. Hardee Cty. v. FINR II, Inc. ,
221 So.3d 1162 , 1165 (Fla. 2017). Section
45.031(1)(a) requires that, in each final foreclosure judgment, the trial court "shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date" the judgment is entered. §
45.031(1)(a), Fla. Stat. (2016) *233 (emphasis added). 8 As mentioned previously, section
45.031(1)(a) also requires the final foreclosure judgment to contain, in conspicuous type, specific instructions to subordinate lienholders claiming an entitlement to any surplus funds realized at the foreclosure sale: IF THIS PROPERTY IS SOL...
...IF YOU ARE A SUBORDINATE LIEN HOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE , YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN SIXTY (60) DAYS AFTER THE SALE . IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. 9 (All capital letters in original; underlining emphasis added). Section 45.031(2) requires the publication of the notice of sale once a week for two consecutive weeks in a newspaper of general circulation....
...The published notice must contain, among other things, "[a] description of the property to be sold," 10 [t]he time and place of the sale ," 11 and "[a] statement that any person claiming an interest in the surplus from the sale, if any ... must file a claim within 60 days after the sale ." 12 Next, section 45.031(3) requires " the sale ......
...be conducted at public auction at the time and place set forth in the final judgment." (Emphasis added). This section also requires that the successful high bidder post a deposit equal to five percent "[a]t the time of the sale ." Id. (Emphasis added.) Section 45.031(4) requires the clerk, "[a]fter a sale of the property" to "promptly file a certificate of sale and serve a copy of it on each party...." Id. (Emphasis added.) Section 45.031(5) requires the clerk to file a Certificate of Title "[i]f no objections to the sale are filed within 10 days after filing the certificate of sale...." (Emphasis added.) Section 45.031(6) requires the clerk to record the Certificate of Title and states that "title to the property shall pass to the purchaser named in the certificate" of title when the clerk files same. Section 45.031(7)(a) requires the clerk, "on filing a certificate of title," to disburse the sales proceeds and file a Certificate of Disbursements outlining how the sales proceeds have been disbursed, including any surplus retained by the clerk. Finally, section 45.031(7)(b) requires the Certificate of Disbursements to contain the following notation in all capital letters, immediately following the section outlining any surplus funds: *234 IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER...
...OU 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. AFTER 60 DAYS, ONLY THE OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY CLAIM THE SURPLUS. § 45.031(7)(b), Fla. Stat. (2016). (Emphasis added.) C. Statutory Construction Discussion As is apparent from the relevant provisions of section 45.031, the foreclosure sale is an event separate, apart, and distinct from the clerk's issuance of a Certificate of Title....
...The clerk's issuance of the Certificate of Title is a ministerial act undertaken by the clerk at least ten days following the sale , assuming no objections to the sale have been filed; it is an altogether distinct event from the foreclosure sale. Critically, each and every reference in section 45.031 as to when subordinate lienholders are required to file a claim to surplus proceeds relates to the sixty-day period after the "sale." Conversely, the statute contains no such reference to the sixty-day period commencing with the clerk's issuance of the Certificate of Title. Had the Legislature intended for the sixty-day period to commence with the clerk's issuance of the Certificate of Title, it certainly could have drafted section 45.031 to accomplish such intent....
...legislative intent or resort to rules of statutory construction to ascertain intent."). Based on our de novo review of the text of the relevant statutory provisions, we are unable to conclude, as did the Fourth District and the trial court, that in section 45.031, the Legislature's use of the word "sale" means anything but the foreclosure sale....
...On occasion, even after merits briefing and oral argument, our Supreme Court has dismissed a case, concluding that its initial jurisdiction determination was improvident. See e.g. Yee v. State ,
214 So.3d 540 (Fla. 2017). In 2006, the Florida Legislature amended section
45.031(1) to, among other things, require every foreclosure judgment to contain specific language regarding the process by which a subordinate lienholder could claim an entitlement to any surplus proceeds realized at a foreclosure sale....
...Both Form 1.996(a) and paragraph 8 of the March 17, 2016 foreclosure judgment include this statutorily required language in that portion of the final judgment relating to the trial court's continuing jurisdiction in the case. See section I. A. , supra . § 45.031(2)(a), Fla. Stat. (2016). § 45.031(2)(b), Fla. Stat. (2016). (Emphasis added.) § 45.031(2)(f), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...THE PROPERTY
OWNER AS OF THE DATE OF LIS PENDENS MUST FILE A
CLAIM WITHIN 60 DAYS AFTER THE SALE.
(All capital letters in original; underlining emphasis added).
The foreclosure sale occurred on June 21, 2016. In conformity with section
45.031(4) of the Florida Statutes, the clerk, on June 24, 2016, issued a Certificate
of Sale informing that the property was sold to third-party purchaser Degel, LLC
(“Degel”) for $116,100 at the June 21, 2016 foreclosure sale.
C. The Certificates of Title and Disbursements
Having received no objections to the sale within ten days after the filing of
the Certificate of Sale, the clerk, pursuant to section 45.031(5), issued the
Certificate of Title on July 8, 2016. Also on July 8, 2016, in conformity with
section 45.031(7), the clerk issued the Certificate of Disbursements, identifying a
surplus realized by the foreclosure sale in the amount of $41,578.63. As required
by section 45.031(7)(b), the Certificate of Disbursements contained the
following instructions to Association:
IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS
REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM
WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE
4
SALE....
...B. Text of Relevant Statutory Provisions
The Florida Statutes prescribe a very specific procedure for foreclosure sales
and the disbursement of proceeds generated from foreclosure sales. The relevant
procedures are codified in section 45.031, and incorporated into the Florida
Supreme Court-promulgated final foreclosure judgment form, Form 1.996.7 As
6 On September 5, 2017, the Florida Supreme Court accepted conflict jurisdiction
of Straub and Glenville in case number SC17-954....
...On occasion, even after merits
briefing and oral argument, our Supreme Court has dismissed a case, concluding
that its initial jurisdiction determination was improvident. See e.g. Yee v. State,
214 So. 3d 540 (Fla. 2017).
7 In 2006, the Florida Legislature amended section
45.031(1) to, among other
things, require every foreclosure judgment to contain specific language regarding
the process by which a subordinate lienholder could claim an entitlement to any
surplus proceeds realized at a foreclosure sale....
... with any case involving statutory construction, our goal is to identify the
Legislature’s intent, and our inquiry begins by consulting the plain meaning of the
relevant statute’s text. Hardee Cty. v. FINR II, Inc.,
221 So. 3d 1162, 1165 (Fla.
2017).
Section
45.031(1)(a) requires that, in each final foreclosure judgment, the
trial court “shall direct the clerk to sell the property at public sale on a specified
day that shall be not less than 20 days or more than 35 days after the date” the
judgment is entered. §
45.031(1)(a), Fla. Stat. (2016) (emphasis added).8 As
mentioned previously, section
45.031(1)(a) also requires the final foreclosure
judgment to contain, in conspicuous type, specific instructions to subordinate
Form (Form 1.996) to, among other things, incorporate the sixty-day time period
into that portion of the form...
...FILE A CLAIM WITH THE CLERK NO LATER THAN SIXTY
(60) DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM,
YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.9
(All capital letters in original; underlining emphasis added).
Section 45.031(2) requires the publication of the notice of sale once a week
for two consecutive weeks in a newspaper of general circulation....
...must file a claim within
9 Both Form 1.996(a) and paragraph 8 of the March 17, 2016 foreclosure judgment
include this statutorily required language in that portion of the final judgment
relating to the trial court’s continuing jurisdiction in the case. See section I. A.,
supra.
10 § 45.031(2)(a), Fla. Stat. (2016).
11 § 45.031(2)(b), Fla. Stat. (2016). (Emphasis added.)
12
60 days after the sale.”12 Next, section 45.031(3) requires “the sale ....
...be
conducted at public auction at the time and place set forth in the final judgment.”
(Emphasis added). This section also requires that the successful high bidder post a
deposit equal to five percent “[a]t the time of the sale.” Id. (Emphasis added.)
Section 45.031(4) requires the clerk, “[a]fter a sale of the property” to “promptly
file a certificate of sale and serve a copy of it on each party. . . .” Id. (Emphasis
added.)
Section 45.031(5) requires the clerk to file a Certificate of Title “[i]f no
objections to the sale are filed within 10 days after filing the certificate of sale. . .
.” (Emphasis added.) Section 45.031(6) requires the clerk to record the Certificate
of Title and states that “title to the property shall pass to the purchaser named in
the certificate” of title when the clerk files same.
Section 45.031(7)(a) requires the clerk, “on filing a certificate of title,” to
disburse the sales proceeds and file a Certificate of Disbursements outlining how
the sales proceeds have been disbursed, including any surplus retained by the clerk.
Finally, section 45.031(7)(b) requires the Certificate of Disbursements to contain
the following notation in all capital letters, immediately following the section
outlining any surplus funds:
12 § 45.031(2)(f), Fla....
...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. AFTER 60 DAYS,
ONLY THE OWNER OF RECORD AS OF THE DATE OF THE
LIS PENDENS MAY CLAIM THE SURPLUS.
§ 45.031(7)(b), Fla. Stat. (2016). (Emphasis added.)
C. Statutory Construction Discussion
As is apparent from the relevant provisions of section 45.031, the
foreclosure sale is an event separate, apart, and distinct from the clerk’s issuance of
a Certificate of Title....
...The clerk’s issuance of
the Certificate of Title is a ministerial act undertaken by the clerk at least ten days
following the sale, assuming no objections to the sale have been filed; it is an
altogether distinct event from the foreclosure sale. Critically, each and every
reference in section 45.031 as to when subordinate lienholders are required to file a
claim to surplus proceeds relates to the sixty-day period after the “sale.”
Conversely, the statute contains no such reference to the sixty-day period
commencing with the clerk’s issuance of the Certificate of Title. Had the
Legislature intended for the sixty-day period to commence with the clerk’s
issuance of the Certificate of Title, it certainly could have drafted section 45.031 to
14
accomplish such intent....
...legislative intent or resort to rules of statutory construction to ascertain intent.”).
Based on our de novo review of the text of the relevant statutory provisions,
we are unable to conclude, as did the Fourth District and the trial court, that
in section 45.031, the Legislature’s use of the word “sale” means anything but the
foreclosure sale....
CopyPublished | Florida 3rd District Court of Appeal | 2013 Fla. App. LEXIS 9291, 2013 WL 2494706
...The appellees agree that the $6,382.53 disbursed to Wells Fargo Bank, N.A., will be disgorged by Wells Fargo directly to the appellants, Kevin Hassett and Angela Hassett, and that the additional surplus funds held by the Clerk of the Circuit Court will be disbursed to the Hassetts. See § 45.031, Fla....
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 8094
...tes. The final judgment and its amendment in Civil Action No. 70-8438, upon which the sale and purchase were based, do not provide for such adjustments to the bid of the successful purchaser. This judicial sale was held pursuant to Florida Statutes, § 45.031, F.S.A. When appellant received its Certificate of Title, the sale stood confirmed. Florida Statutes, § 45.031(4), F.S.A....
CopyPublished | Florida 4th District Court of Appeal
foreclosure sale. The homeowner argues that under section
45.031(8), Florida Statutes (2024), the trial court
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 10381, 2015 WL 4098868
...fact that the homeowner (and not FST) was the party who exercised the right of
redemption.
2 The record is unclear as to the identity of the trial judge who denied the
motion for rehearing.
3
471, 472 (Fla. 2d DCA 2015).
Section 45.0315, Florida Statutes (2013), provides for a mortgagor’s
right of redemption:
At any time before the later of the filing of a certificate of sale
by the clerk of the court or the time specified in the
judgment ....
...and prevent a foreclosure sale by paying the amount of
moneys specified in the judgment, order, or decree of
foreclosure . . . .
The right of redemption may be assigned. VOSR Indus., Inc. v. Martin
Props., Inc.,
919 So. 2d 554, 556 (Fla. 4th DCA 2005).
Section
45.031, Florida Statutes (2013), governs judicial foreclosure
sales. The statute provides that “[i]f no objections to the sale are filed
within 10 days after filing the certificate of sale, the clerk shall file a
certificate of title and serve a copy of it on each party . . . .” §
45.031(5),
Fla....
CopyPublished | Florida 3rd District Court of Appeal
...The trial court ultimately denied the second motion to vacate,
finding that the sale price was not inadequate “in light of all the circumstances
2
Alternatively, Columbus and Suncoast requested that their motion be
treated as an objection to sale. See § 45.031, Fla....
...inal order or
a proceeding that resulted in a final order; it was directed solely at the post-
judgment foreclosure sale. 5 Moreover, Columbus and Suncoast are not
challenging the underlying final judgment. 6 Consequently, the second
5
Section 45.031, Florida Statutes (2021), provides a mechanism for
objecting to a foreclosure sale.
6
We note there is case law authorizing Rule 1.540 as a basis for vacating a
foreclosure sale when a party is also seeking to vacate the underlying final
judgment of foreclosure, but that is not the situation here....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11410, 2016 WL 4035667
...et. aside. The court did not abuse its discretion in denying the motion in this case. The lender was the bidder, not a third-party purchaser. To the extent the borrower is concerned about a deficiency judgment, opr legislature has provided a remedy. Section 45.031(8), Florida Statutes (2014), provides: The amount of the bid for the property at the sale shall be conclusively pre-súmed to be sufficient consideration for the sale_If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the- sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles. - • § 45.031(8), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 10907, 2003 WL 21685831
...Edwards' motion did not confirm a sale of the foreclosed property. For reasons that are unclear from the record, [1] no sale ever took place. Nor did Ms. Edwards exercise her right to redeem the property at "any time before the filing of a certificate of sale by the clerk of the court," § 45.0315, Fla....
...As is apparent from the final quoted sentence, the order did not, however, bar Bankers Trust from proceeding with an execution sale. The two statutory procedures are not synonymous. A clerk's sale, which was earlier directed in the final judgment of foreclosure, is carried out in accordance with the provisions of section 45.031, Florida Statutes (2002). Under this procedure, no execution occurs. See § 45.031(9)....
...In contrast, execution sales, undertaken pursuant to sections
56.21 through
56.25, Florida Statutes (2002), obviously require a prior levy on the property sought to be sold. Other differences in the two procedures are set out in the following chart. *1163 Judicial Sale (§§
45.031
45.0315) Execution Sale (§§
56.2156.29) Conducted by clerk by order of the court....
CopyAgo (Fla. Att'y Gen. 2001).
Published | Florida Attorney General Reports
proceeds of sale), other than excess proceeds[.]" Section
45.031, Florida Statutes, sets forth specific procedures
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 11289, 2012 WL 2813875
MAY, C.J. A homeowner appeals an order denying her Objections to Judicial Sale and Motion to Set Aside Judicial Sale. She argues the trial court erred in denying her motion because no pre-sale publication notice was made, pursuant to section 45.031, Florida Statutes (2011)....
...The Clerk’s online docket also failed to disclose a Proof of Publication. The trial court held a hearing on the homeowner’s Motion to Set Aside the Foreclosure Sale and denied the motion. From this Order, the homeowner now appeals. The homeowner argues that the foreclosure sale did not comply with section 45.031, which requires advance notice of a sale....
...The homeowner requests a reversal of the foreclosure sale and asks for it to be reset with proper notice. The purchaser and association respond that the trial court did not abuse its discretion in refusing to set aside the foreclosure sale because section 45.031 does not provide a mandatory framework for the Clerks of Court to conduct foreclosure sales....
...equacy of the bid resulted from some mistake, fraud, or other irregularity in the sale. We review orders on motions to set aside foreclosure sales for an abuse of discretion. Long Beach Mortg. Corp. v, Bebble,
985 So.2d 611, 613 (Fla. 4th DCA 2008). Section
45.031 provides, in relevant part: In any sale of real or personal property under an order or judgment, the procedures provided in this section and §§
45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court....
...Such electronic sales shall comply with the procedures provided in this chapter, except that electronic proxy bidding shall be allowed and the clerk may require bidders to advance sufficient funds to pay the deposit required by subsection (3). *438 § 45.031, Fla....
...We recently considered the requirement for publication of sale, and its effect on the trial court’s ability to issue the appropriate certificates, in Castelo Development, LLC v. Aurora Loan Services LLC,
85 So.3d 515 (Fla. 4th DCA). There, we held “[s]ection
45.031, Florida Statutes, requires that notice of sale ‘be published once a week for 2 consecutive weeks in a newspaper of general circulation.’ ... A plain reading of the statute ... supports the ... interpretation that a foreclosure sale should not be confirmed if the notice of sale was not published.” Id. at 517 (quoting §
45.031(2), Fla....
...Thus, if the clerk cannot certify that the notice of sale was published, the clerk should not issue the certificate of sale. Without a certificate of sale, the clerk of the court lacked authority to issue a certificate of title and thereby confirm the sale. Id. (quoting § 45.031(4), Fla. Stat. (2011)) (citations omitted). Here, the judgment of foreclosure also provided for the public sale to be “in accordance with section 45.031, Florida Statutes.” Like Castelo, neither party disputes that the Clerk failed to publish the notice of sale in accordance with section 45.031....
...Because the Clerk could not certify that the notice of sale was published, the Clerk should not have issued the Certificate of Sale. And without a Certificate of Sale, the Clerk of the Court lacked the authority to issue a Certificate of Title. Id. Nevertheless, the purchaser and association argue that the provisions of section
45.031 are elective, not mandatory. Specifically, they assert that “the plain language of the statute demonstrates that the procedure set forth in section
45.031 is not the exclusive procedure for setting a foreclosure sale and that a judge has the discretion to use a different procedure.” Royal Palm Corporate Ctr. Ass’n v. PNC Bank, NA,
89 So.3d 923, 927 (Fla. 4th DCA 2012). While that may be true, where the trial court explicitly adopts the statutory framework of section
45.031, it must adhere to the statute’s provisions. As in Castelo, the trial court elected to adopt the procedures in section
45.031, but then failed to adhere to them....
...ation in a motion to set aside a foreclosure *439 sale.”) 2 Id. We therefore reverse and remand the case to the trial court to vacate the foreclosure sale and the Certificates of Sale and Title, and to reset the foreclosure sale in accordance with section 45.031....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6556
...The court denied appellant’s petition and issued an order directing that all monies paid by the appellant as purchaser be returned to him. This appeal is from that order. It is apparent that a similar situation is unlikely to arise in the future because of the change in Fla.Stat. § 45.031, F.S.A., as amended by Chapter 71-5, Laws of Florida, 1971, which eliminates the ten day period after a sale during which redemption may occur....
CopyPublished | Florida 4th District Court of Appeal
...orders that are necessary or are proper including, but not
limited to [re-foreclosure, determining amounts owed to any
condominium or homeowners association, issuance of writ of
possession, and entry of a deficiency judgment].
(Emphasis added).
Section 45.031(7)(a), Florida Statutes (2022), provides: “On filing a
certificate of title, the clerk shall disburse the proceeds of the sale in
accordance with the order or final judgment and shall file a report of such
disbursements[.]” Section 45.031(7)(c), Florida Statutes (2022), provides:
“If no objections to the report are served within 10 days after it is filed, the
disbursements by the clerk shall stand approved as reported.” Section
45.031(7)(d), Florida Statutes (2022), defines “surplus funds” or “surplus”
as the “funds remaining after payment of all disbursements required by
the final judgment of foreclosure and shown on the certificate of
disbursements.”...
...judgment expenses incurred to protect the property and obtain a sale date
after several cancellations of sale.1 We reject the assignee’s argument that
because the lender did not seek to amend the final judgment, the proceeds
of sale automatically became section 45.031(7)(c) “surplus funds” payable
to the property owner (or an assignee of the property owner), rather than
the lender.
Conclusion
In addition to rejecting the assignee’s arguments that the rema...
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 259, 2016 WL 74988
...titled to
surplus funds after payment of subordinate lienholders who have timely
filed a claim.” §
45.032(2), Fla. Stat. (2014). A subordinate lienholder’s
claim is “timely filed” when it is filed “no later than 60 days after the sale.”
§
45.031(1)(a), (7)(b), Fla. Stat. (2014); see also §
45.031(2)(f) (“[A]ny person
claiming an interest in the surplus from the sale . . . must file a claim
within 60 days after the sale.”).
Judicial sales following foreclosure are governed by the procedures
outlined in Florida Statutes section
45.031. The foreclosed property is
sold at a public auction. §
45.031(3). After the auction is concluded, the
clerk files the “certificate of sale,” which sets forth the “highest and best
bid received for the property” and the identity of the person “to whom the
property was sold.” §
45.031(4). “If no objections to the sale are filed
within 10 days after filing the certificate of sale, the clerk shall file a
certificate of title . . . .” §
45.031(5).
When the certificate of title is filed the sale shall stand
confirmed, and title to the property shall pass to the
purchaser named in the certificate without the necessity of
any further proceedings or instruments.
§
45.031(6). Thereafter, the clerk disburses the proceeds and files the
certificate of disbursements. §
45.031(7)(a). “If there are funds remaining
after payment of all disbursements required by the final judgment of
foreclosure and shown on the certificate of disbursements, the surplus
shall be distributed as provided in this section and ss.
45.0315-45.035.”
§
45.031(7)(d).
The relevant dates which provide the backdrop for this case are
straightforward....
... Appellant argues the sixty-day time frame within which subordinate
lienholders must file their claims begins to run when the property is
purchased at the auction and the certificate of sale is filed. We disagree.
This is an issue of first impression under today’s version of section
45.031. We note, however, that the Florida Supreme Court was presented
with a similar issue in Allstate Mortgage Corp. of Florida v. Strasser,
286
So. 2d 201 (Fla. 1973). There, the court was interpreting an earlier version
of section
45.031 which applied to a mortgagor’s right of redemption....
...1929)]), we hereby find that the Legislature
intended to adopt the recognized meaning of the word ‘sale’
and that the sale did not take place until ownership of the
property was transferred. Said transfer takes place according
3
to s. 45.031(3), Fla....
...Stat., ten days after the day of the sale,
upon no objections being filed thereto and issuance of the
certificate of title.”
Id. at 202–03 (quoting Allstate Mortg. Corp. of Fla. v. Strasser,
277 So. 2d
843, 845 (Fla. 3d DCA 1973)).
In 1993, the legislature enacted Florida Statutes section
45.0315,
codifying the mortgagor’s right of redemption and specifying that the
mortgagor may cure the indebtedness and prevent a foreclosure sale at
“any time before the later of the filing of a certificate of sale by the clerk of
the court or the time specified in the judgment, order, or decree of
foreclosure.” §
45.0315, Fla. Stat. (2014). The Third District observed that
“the common law rule announced in Allstate v. Strasser, with respect to
redemption, has been displaced by the enactment of section
45.0315,
Florida Statutes, which exclusively governs the time, manner, and
procedure for the claimed exercise of redemptive rights.” Emanuel v.
Bankers Trust Co.,
655 So. 2d 247, 250 (Fla. 3d DCA 1995) (emphasis
added).
We recognize that Strasser has been superseded in part by the
enactment of section
45.0315. However, in section
45.0315, the
legislature simply created a specific window for exercising the right of
redemption between the judgment and either the time specified in the
judgment or the filing of a “certificate of sale” by the clerk of court....
...We are
persuaded by the supreme court’s reasoning in Strasser, and apply the
court’s definition of “sale” to today’s version of the statute and the
requirement that subordinate lienholders file their claims no later than
sixty days “after the sale.”
Under section
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 the certificate of title confirms the sale,
curing “all irregularities, misconduct and unfairness in the making of the
sale.” McClanahan v. Mayne,
138 So. 36, 38 (Fla. 1931); see also §
45.031(6), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...The trial court denied the borrower’s objection and this
appeal followed.
We do not reach the merits of the borrower’s objection based upon the
alleged defect in the advertisement. Objections to foreclosure sales must be
raised within 10 days of the sale. § 45.031(8), Fla....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 1982 Bankr. LEXIS 5146
...The only step which remained to extinguish the debtors’ interest in the mortgaged property was the clerk’s issuance of a certificate of title. Under Florida law, prior to the issuance of a certificate of title, the mortgagor has a limited right to redeem his property by payment in full of the total indebtedness. § 45.031, Fla.Stat.; Walters v....
CopyPublished | Florida 2nd District Court of Appeal
...Edwards of The Edwards Law
Firm, PL, Sarasota, for Appellees.
SLEET, Judge.
The Bank of New York Mellon appeals the trial court's order denying its
claim for surplus funds from a foreclosure sale.1 Because the bank's claim was
untimely, we affirm.
Under section 45.031(7)(b), Florida Statutes (2015), any person claiming a
right to surplus funds must file a claim with the clerk of court within sixty days of the
foreclosure sale....
...1
Diane and Mark Glenville were the property owners and defendants in
the foreclosure action. They are entitled to the surplus funds remaining with the clerk
more than sixty days after the foreclosure sale pursuant to section
45.031(7)(b), Florida
Statutes (2015).
-2-
meaning." Gulf Atl. Office Props., Inc. v. Dep't of Revenue,
133 So. 3d 537, 539 (Fla.
2d DCA 2014) (quoting Hess v. Walton,
898 So. 2d 1046, 1049 (Fla. 2d DCA 2005)).
This court has previously explained that "the language in section
45.031(7)(b) is clear and unambiguous: any person claiming a right to the surplus funds
must file a claim with the clerk no later than sixty days after the sale." Dever v. Wells
Fargo Bank Nat'l Ass'n,
147 So. 3d 1045, 1047 (Fla. 2d DCA 2014); see also Mathews,
139 So. 3d at 500 ("The language of section
45.031(7)(b) is clear and unambiguous in
requiring that any person claiming a right to the surplus funds 'MUST FILE A CLAIM
WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE.' " (emphasis
omitted)). This subsection only refers to the "sale," not the "certificate of sale."
§
45.031(7)(b). This is significant because section
45.031 assigns particular and
distinct meanings to the terms "sale" and "certificate of sale" and does not use them
interchangeably. See §
45.031(4) ("After a sale of the property the clerk shall promptly
file a certificate of sale and serve a copy of it on each party ....
...f the actual sale itself—would
render subsection (4) meaningless and would confuse the meaning of other subsections
of the statute.
Additionally, such a reading would be inconsistent with this court's prior
case law interpreting section 45.031(7)(b)....
...148, 154 (Bankr. M.D.
Fla. 1995), and Shlishey the Best, Inc. v. CitiFinancial Equity Services, Inc.,
14 So. 3d
1271, 1275 (Fla. 2d DCA 2009)—are inapplicable here because they both concern a
mortgagor's right of redemption, which is governed by section
45.0315, not section
45.031.
Affirmed.
LaROSE and BADALAMENTI, JJ., Concur.
-4-
CopyPublished | Supreme Court of Florida
...ing premises
under the PTFA or section
83.5615, Florida Statutes (2023). Next,
in paragraph “8. Jurisdiction Retained,” we replace “60 days after
the sale” with “the date that the clerk reports the funds as
unclaimed” to conform with section
45.031(1)(a), Florida Statutes
(2023).
Further, we make similar amendments to form 1.996(b)....
...Right of
Redemption/Right of Possession,” we add language providing an
exception for a bona fide tenant occupying premises under the
PTFA or section
83.5615 for the same reason discussed for form
1.996(a). Last, in paragraph “9. Jurisdiction Retained,” we amend
the language to conform with section
45.031(1)(a).
Florida Rules of Civil Procedure forms 1.996(a) and 1.996(b)
are amended as set forth in the appendix....
...property at public sale on .....(date)....., to the highest bidder for
cash, except as prescribed in paragraph 4, at the courthouse
located at .....(street address of courthouse)..... in .......... County in
.....(name of city)....., Florida, in accordance with section 45.031,
Florida Statutes, using the following method (CHECK ONE):
........
...On filing
the certificate of sale, defendant(s) and all persons claiming under
or against defendant(s) since the filing of the notice of lis pendens
shallmust be foreclosed of all estate or claim in the property and
defendant’s right of redemption as prescribed by section 45.0315,
Florida Statutes, shallmust be terminated, except as to the rights of
a bona fide tenant occupying residential premises under the federal
-6-
Protecting Tenants at Foreclosure Act, 12 U.S.C § 52...
... property at public sale on .....(date)….., to the highest bidder for
cash, except as prescribed in paragraph 4, at the courthouse
located at ….(street address of courthouse)…. in .......... County in
.....(name of city)....., Florida, in accordance with section 45.031,
Florida Statutes, using the following method (CHECK ONE):
........
...On filing
the certificate of sale, defendant(s) and all persons claiming under
or against defendant(s) since the filing of the notice of lis pendens
shallmust be foreclosed of all estate or claim in the property and
defendant’s right of redemption as prescribed by section 45.0315,
Florida Statutes, shallmust be terminated, except as to the rights of
a bona fide tenant occupying residential premises under the federal
Protecting Tenants at Foreclosure Act, 12 U.S.C....
CopyPublished | Florida 4th District Court of Appeal | 1979 Fla. App. LEXIS 14137
judgment was properly entered.1 Affirmed. . Section
45.031(7), Florida Statutes (1977), states: “VALUE
CopyPublished | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 1, 2016 Fla. LEXIS 68, 2016 WL 164134
...llo, P.A., Tallahassee,
1. The Committee requests that the Court correct a scrivener’s error in form
1.996(b) (Final Judgment of Foreclosure for Reestablishment of Lost Note). The
original submission by the Committee incorrectly cited to section 45.031, Florida
Statutes. We amend the form to instead cite to section 45.0315, Florida Statutes.
-6-
Florida; John F....
...the property at public sale on .....(date)….., to the highest bidder for cash, except as prescribed in
paragraph 4, at the courthouse located at ….(street address of courthouse)…. in ……………
County in ..…(name of city)….., Florida, in accordance with section 45.031, Florida Statutes
(2013), using the following method (CHECK ONE):
- 21 -
….....
...On filing the certificate of sale,
defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice
of lis pendens shall be foreclosed of all estate or claim in the property and defendant’s right of
redemption as prescribed by section 45.0315, Florida Statutes (2013) shall be terminated, except
as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any....
CopyPublished | Supreme Court of Florida
...ing premises
under the PTFA or section
83.5615, Florida Statutes (2023). Next,
in paragraph “8. Jurisdiction Retained,” we replace “60 days after
the sale” with “the date that the clerk reports the funds as
unclaimed” to conform with section
45.031(1)(a), Florida Statutes
(2023).
Further, we make similar amendments to form 1.996(b)....
...Right of
Redemption/Right of Possession,” we add language providing an
exception for a bona fide tenant occupying premises under the
PTFA or section
83.5615 for the same reason discussed for form
1.996(a). Last, in paragraph “9. Jurisdiction Retained,” we amend
the language to conform with section
45.031(1)(a).
Florida Rules of Civil Procedure forms 1.996(a) and 1.996(b)
are amended as set forth in the appendix....
...property at public sale on .....(date)....., to the highest bidder for
cash, except as prescribed in paragraph 4, at the courthouse
located at .....(street address of courthouse)..... in .......... County in
.....(name of city)....., Florida, in accordance with section 45.031,
Florida Statutes, using the following method (CHECK ONE):
........
...On filing
the certificate of sale, defendant(s) and all persons claiming under
or against defendant(s) since the filing of the notice of lis pendens
shallmust be foreclosed of all estate or claim in the property and
defendant’s right of redemption as prescribed by section 45.0315,
Florida Statutes, shallmust be terminated, except as to the rights of
a bona fide tenant occupying residential premises under the federal
-6-
Protecting Tenants at Foreclosure Act, 12 U.S.C § 52...
... property at public sale on .....(date)….., to the highest bidder for
cash, except as prescribed in paragraph 4, at the courthouse
located at ….(street address of courthouse)…. in .......... County in
.....(name of city)....., Florida, in accordance with section 45.031,
Florida Statutes, using the following method (CHECK ONE):
........
...On filing
the certificate of sale, defendant(s) and all persons claiming under
or against defendant(s) since the filing of the notice of lis pendens
shallmust be foreclosed of all estate or claim in the property and
defendant’s right of redemption as prescribed by section 45.0315,
Florida Statutes, shallmust be terminated, except as to the rights of
a bona fide tenant occupying residential premises under the federal
Protecting Tenants at Foreclosure Act, 12 U.S.C....
CopyPublished | Florida 3rd District Court of Appeal | 1978 Fla. App. LEXIS 15593
these acts were under the apparent aegis of Section
45.031, Florida Statutes (1975), which relates to
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 1791, 2015 WL 543411
...3d DCA
1999)) (emphasis added).1 No order was entered on Salazar’s motion to set aside
the final judgment.
1 As IndyMac Federal Bank FSB,
104 So. 3d at 1236-1237 explains:
Florida case law is clear that the substance of an objection to a
foreclosure sale under section
45.031(5) must be directed toward
conduct that occurred at, or which related to, the foreclosure sale
itself....
...l not qualify for a mortgage
modification.” The trial court then “dismissed” the case and declared Salazar the
2 Rejection of Salazar’s objections to the sale should have triggered the ministerial
act of filing a certificate of title. See § 45.031, Fla....
CopyPublished | Florida 2nd District Court of Appeal
...[Trust representative], acting on behalf of 2017 Bell
Ranch Residential Land Trust had been renting the
property for a profit.
On its face, the circuit court's order was contrary to the law governing the
disbursement of a surplus after a judicial sale. Section
45.031(7)(d), Florida Statutes
(2017), states, "If there are funds remaining after payment of all disbursements required
by the final judgment of foreclosure and shown on the certificate of disbursements, the
surplus shall be distributed as provided in this section and ss.
45.0315-45.035." Section
45.032(2) in turn provides:
There is established a rebuttable legal presumption
that the owner of record on the date of the filing of a lis
pendens is the person entitled to...
CopyPublished | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 712, 2010 Fla. LEXIS 2086, 2010 WL 4977484
...court shall sell the property at public sale on .(date)., to the highest bidder for cash, except as prescribed in paragraph 4, at the courthouse located at .(street address of courthouse). in . County in .(name of city)., Florida, in accordance with section 45.031, Florida Statutes, using the following method (CHECK ONE): □ At .(location of sale at courthouse; e.g., north door)., beginning at .(time of sale).on the prescribed date....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 6800978, 2013 Fla. App. LEXIS 20337
...That judgment accorded Edelsberg the right of redemption but expressly limited that right until the filing of a certificate of sale: 7. Right of Redemption. Upon filing of the Certificate of Sale, Defendant’s right of redemption as prescribed by Florida Statutes, Section 45.0315 shall be terminated....
...e would ever have occurred, accepts the finding that he had the money sufficient to pay the tender and accordingly will vacate the Sale. A written order vacating the sale was entered. Chase, the purchaser at the foreclosure sale appeals; we reverse. Section 45.031 of the Florida Statutes authorizes objections to judicial foreclosure sales if timely made: (4) CERTIFICATION OF SALE.— After a sale of the property the clerk shall promptly file a certificate of sale and serve a copy of it on each party.... (5) CERTIFICATE OF TITLE. — If no objections to the sale are filed within 10 days after the filing certificate of sale, the clerk shall file a certificate of title.... §§ 45.031(4), (5), Fla....
...And, because the final judgment issued below stated that Edelsberg’s right *1142 of redemption terminated upon filing of a certificate of sale, by the time Edelsberg filed his objection, his right to redeem simply by tendering payment had already passed. See § 45.0315, Fla....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 1982 Bankr. LEXIS 5236
...The sale was rescheduled and was held on September 7, 1982. The subject property was sold to the sole bidder, the holder of the mortgage, Super 50, for $100. On September 16, 1982, or prior to the expiration of the redemption period provided by state law, § 45.031(3), (4) Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 1994 Fla. App. LEXIS 12290, 1994 WL 700090
...The ap-pellees complied with the existing law at the. time the property was redeemed. The statute on judicial sales allowed the Cavanaughs, the owners of the property in foreclosure, or their successor in interest, to redeem the property up to the time of the judicial sale. See § 45.031(1), Fla.Stat....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 752, 2014 Fla. LEXIS 3682, 2014 WL 6977929
...lic sale on .....(date)….., to the
highest bidder for cash, except as prescribed in paragraph 4, at the courthouse
located at ….(street address of courthouse)…. in …………… County in …..(name
of city)….., Florida, in accordance with section 45.031, Florida Statutes (2013),
using the following method (CHECK ONE):
□….....
...On filing the certificate
of sale, defendant(s) and all persons claiming under or against defendant(s) since
the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the
property and defendant’s right of redemption as prescribed by section 45.0315,
Florida Statutes (2013) shall be terminated, except as to claims or rights under
chapter 718 or chapter 720, Florida Statutes, if any....
...The reference to writs of assistance in paragraph 7 is
changed to writs of possession to comply with the consolidation of the 2 writs.
2010 Amendment. Mandatory statements of the mortgagee/property
owner‘s rights are included as required by the 2006 amendment to section 45.031,
Florida Statutes. Changes are also made based on 2008 amendments to section
45.031, Florida Statutes, permitting courts to order sale by electronic means.
- 24 -
Additional changes were made to bring the form into compliance with
chapters 718 and 720 and section 45.0315, Florida Statutes, and to better align the
form with existing practices of clerks and practitioners....
...sale on .....(date)….., to the
highest bidder for cash, except as prescribed in paragraph 4, at the courthouse
located at ….(street address of courthouse)…. in …………… County in
………(name of city)….., Florida, in accordance with section 45.031, Florida
Statutes (2013), using the following method (CHECK ONE):
At .....(location of sale at courthouse; e.g., north door)....., beginning at
.....(time of sale)........
...On filing the certificate
of sale, defendant(s) and all persons claiming under or against defendant(s) since
the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the
property and defendant’s right of redemption as prescribed by section 45.031,
Florida Statutes (2013) shall be terminated, except as to claims or rights under
chapter 718 or chapter 720, Florida Statutes, if any....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 18944, 2010 WL 5017323
...Following a hearing on the motion, and over LR5A's objection, the court entered an order setting a date for a judicial sale. LR5A now appeals this order. [2] LR5A contends that as the judgment holder, it has the right to control when, if at all, a foreclosure sale takes place under section 45.031, Florida Statutes (2010). According to LR5A, the Association, as a junior lien holder, cannot demand that a foreclosure sale date be set, and the trial court erred as a matter of law in setting the date for the judicial sale. The Association counters that section 45.031(1), gives the trial court the ultimate authority to order a judicial sale. We agree with the Association. Section 45.031(1) governs the procedures for judicial sales following entry of a final judgment of foreclosure. It provides in pertinent part: 45.031. Judicial sales procedure In any sale of real or personal property under an order or judgment, the procedures provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court....
...r more than 35 days after the date thereof, on terms and conditions specified in the order or judgment. A sale may be held more than 35 days after the date of final judgment or order if the plaintiff or plaintiff's attorney consents to such time.... § 45.031(1)(a), Fla....
...Bank National Ass'n v. Tadmore,
23 So.3d 822 (Fla. 3d DCA 2009), Bankers Trust Co. of California, N.A. v. Weidner,
688 So.2d 453 (Fla. 5th DCA 1997), and First Nationwide Savings v. Thomas,
513 So.2d 804 (Fla. 4th DCA 1987), to support its contention that under section
45.031, the judgment holder enjoys the right to control the timing of a judicial sale....
...unit. The appellate court explained that the bank was not liable to pay the condominium maintenance fee prior to obtaining title to the unit. The decision makes no mention of the trial court's authority to set a date for a judicial sale pursuant to section 45.031(1)....
...In our earlier opinion in this dispute, we remanded the matter with instructions "to proceed to foreclose the superior mortgage of LR5A-JV." LR5A-JV, LP,
998 So.2d at 1175. Once the mandate issued and jurisdiction again resided in the trial court, the provisions of section
45.031(1) authorized the trial court to set a date for the judicial sale....
...asonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court." White v. State,
817 So.2d 799, 806 (Fla.2002). LR5A's argument not only contravenes the provisions of section
45.031, but also ignores the Association's interest in collecting lawful assessments on the subject property....
...s Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled." In other words, the supreme court, in adopting the form, apparently did not contemplate that a judicial sale would be left in limbo. The trial court's order comports with section 45.031(1) and the policies enunciated by the Foreclosure Task Force and Form 1.996(b)....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 13259, 2014 WL 4212760
...sale in this case up to the full amount of indebtedness. The Devers owed Wells Fargo
$134,578.17.
A default judgment was entered against the Devers on March 23, 2012.
The final judgment of foreclosure included the following language, as required by
section 45.031(1), Florida Statutes (2011):
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION,
THERE MAY BE ADDITIONAL MONEY FROM THE SALE
AFTER PAYMENT OF PERSONS WHO ARE ENTITLED
TO BE PAID FROM...
...A foreclosure sale was held on April 25, 2012, and resulted in a surplus of
$85,899.06, which was placed in the court registry. The certificate of disbursements
was filed on May 8, 2012, and included the following language as required by section
45.031(7)(b):
If you are a person 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....
... because it failed to file a claim for the surplus within the sixty days after the sale. This
court recently addressed this exact issue in Mathews v. Branch Banking & Trust Co.,
139 So. 3d 498 (Fla. 2d DCA 2014). In Mathews, this court held that the language in
section
45.031(7)(b) is clear and unambiguous: any person claiming a right to the
surplus funds must file a claim with the clerk no later than sixty days after the sale. And
section
45.031(1)(a) specifically warns that if a subordinate lienholder fails to file a
claim, it will not be entitled to any remaining funds....
...4th DCA 2006); and other cases that were decided
before the effective date of the amendment are inapplicable here for the same reason.
We disagree with Wells Fargo's argument that the language found in
section
45.032(3)(b) undermines the clear language in section
45.031(7)(b)....
...een filed within the sixty-
day period and another where the owner has acknowledged at any time that there is a
subordinate lienholder that may be entitled to funds. But Wells Fargo has taken this
statutory language out of context.
Section
45.031 sets out the procedure for judicial sales and establishes
the sixty-day deadline for claims to any surplus, see §§
45.031(1)(a), (2)(f), (7)(b).
Section
45.032 then provides the procedure for the disbursement of surplus funds after
a judicial sale and establishes "a rebuttable legal presumption that the owner of record
on the date of the filing of a lis pen...
...where the subordinate lienholder files its own claim or the owner files a claim but
acknowledges the existence of the subordinate lienholder. Thus, section
45.032,
-5-
considered in its entirety and read in conjunction with section
45.031, undoubtedly
contemplates that all claims to the surplus be filed within the sixty days following the
sale and that if no claims are filed during that period the owner is presumed to be
entitled to the surplus.
Revers...
CopyPublished | Supreme Court of Florida | 1982 Fla. LEXIS 2551
court held that the $25 fee provided for in section
45.031(1), Florida Statutes (1979),1 is the only fee
CopyPublished | Florida 3rd District Court of Appeal
certificate of title will also follow as provided by section
45.031(5), Florida Statutes (2016).
CopyPublished | Florida 2nd District Court of Appeal | 1981 Fla. App. LEXIS 20893
SCHWARTZ, Judge. Almost one year after the issuance of a clerk’s certificate of title pursuant to a sale ordered in a final judgment of foreclosure, see Section 45.031, Florida Statutes (1979), the second mortgagee, Pan American Bank, N.A., moved for the entry of a deficiency judgment against the mortgagors....
CopyPublished | Florida 6th District Court of Appeal
...That suit was successful, and the court below
entered a Final Judgment of Foreclosure in favor of HSBC. The Final Judgment
provided that if the total due under the Final Judgment was not paid, the Property
would be sold at a foreclosure sale to be held, with certain exceptions, in accordance
with section 45.031, Florida Statutes.1 The Final Judgment further provided that:
On the filing of Certificate of Sale, Defendant(s) and all persons
claiming under or against Defendant(s) since the filing of the Notice of
1
Section 45.031 permits court to use the procedures therein “as an alternative
to any other sale procedure if so ordered by the court.” None of the exceptions to
the use of section 45.031 set forth in the Final Judgment are relevant to this appeal.
2
Lis Pendens shall be foreclosed of all estate or claim in the property,
except as to claims or rights under Chapter 718 or Chapter 720, Fla.
Stat., if any....
...3
is not entitled to possession of the property when the sale relates to a second
mortgage rather than a first.
As noted above, the Final Judgment provided that the foreclosure sale of the
Property would be held in accordance with section 45.031, Florida Statutes....
...By its
very nature, a foreclosure sale of property involves the sale of the property, not a
sale of the mortgage being foreclosed or of a “judgment on a mortgage.” Cukierman
v. BankAtlantic,
89 So. 3d 250, 251-52 (Fla. 3d DCA 2012). Subsection (6) of
section
45.031 states, “When the certificate of title is filed the sale shall stand
confirmed, and title to the property shall pass to the purchaser named in the
certificate without the necessity of any further proceedings or instruments.”
(emphasis added)....
CopyPublished | Florida 3rd District Court of Appeal | 2012 Fla. App. LEXIS 13454, 2012 WL 3316768
...Based on Coconut Grove Bank’s proper and commendable confession of error, we reverse the order on appeal and remand with instructions to vacate the certificate of sale and direct that the Clerk of the Court republish and reset the foreclosure sale, pursuant to, section 45.031(3), Florida Statutes (2010)....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15332
...the Clerk of this Court shall sell that property at public sale at 11:00 a. m. on the 19th day of January, 1976, to the highest bidder or bidders for cash in the lobby of the Broward County Courthouse, Fort Lauderdale, Florida, after having first given notice as required by Section 45.031, Florida Statutes.” At the sale appellants bid $146,000.00, and the property was struck off to them....
CopyPublished | Florida 3rd District Court of Appeal
...ollowed on the heels of the first.
2
The appeal was ostensibly abandoned, as it suffered the same fate as the
first. The lower court then scheduled a date for public auction, pursuant to
the provisions of section 45.031, Florida Statutes, and the instant appeal
ensued.
A well-developed body of precedent holds that an order of partition is
final at such time as the court directs the sale of the property....
CopyPublished | Florida 3rd District Court of Appeal
...Wesoloski Carlson, P.A., and Erik D. Wesoloski, for appellants.
McCalla Raymer Liebert Pierce, LLC, and Charles P. Gufford
(Orlando), for appellee.
Before FERNANDEZ, C.J., and EMAS and LOBREE, JJ.
PER CURIAM.
Affirmed. See § 45.031(1)(a),(7), Fla....
CopyPublished | Florida 4th District Court of Appeal
...surplus funds to 1722 Investment.
1722 Investment denied making any false statements to the court,
noting that the motion “transparently state[d] 1722 was a third-party
purchaser.” Additionally, the motion “merely recite[d] Florida Statute §
45.031.”
Judge Lopane denied the Amended Motion....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 1277996, 2017 Fla. App. LEXIS 4657
...The appeal of the Final Judgment
was untimely filed more than thirty days after the June 19, 2013 rendition of that
judgment. We similarly dismiss the appeal as untimely filed as to the March 31,
2016 foreclosure sale, where no objection was filed within ten days of date of sale
pursuant to section 45.031(8), Florida Statutes (2016).1
Dismissed.
1 To the extent Appellant seeks to challenge the Writ of Possession, his argument
is without merit....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 14781
redemption beyond the ten day period provided for in Section
45.031(3), Florida Statutes (1977), if the property
CopyAgo (Fla. Att'y Gen. 1994).
Published | Florida Attorney General Reports
the publication of the notice of sale under section
45.031(1), Florida Statutes (1993), governed by Florida
CopyAgo (Fla. Att'y Gen. 1997).
Published | Florida Attorney General Reports
words to that effect. . . ." (e.s.) Similarly, section
45.031(1), relating to the sale of real or personal
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 5855, 2015 WL 1813996
...rest on such a foundation. This is particularly true here
because the order contravenes the terms of the statute that a
sale is to be conducted “not less than 20 days or more than
35 days after the date” of the order or judgment. §
45.031(1)(a), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1982 Fla. App. LEXIS 19859
...used as proof of property’s value); see generally Cirack v. State,
201 So.2d 706 (Fla.1967) (expert’s opinion must be based on facts either in evidence or within his knowledge); and excluding evi *220 dence of price paid at foreclosure sale, see section
45.031(7), Florida Statutes (1979); cf....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 3910, 1996 WL 185059
...dgment. The court then subtracted that total from a fair market value of $700,000.00 to arrive at $139,037.20, the amount of the deficiency judgment. In support of their contention that they are entitled to the deficiency judgment, the Hensehes cite section 45.031(8), Florida Statutes (1991), which provides in pertinent part: If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the sale may be considered by the courts as one of the factors in determining a deficiency under the usual equitable principals....
CopyPublished | Supreme Court of Florida
...(date) .........., to the highest bidder for cash, except as
prescribed in paragraph 4, at the courthouse located at ..... (street address of courthouse) ..... in
.......... County in .......... (name of city) .........., Florida, in accordance with section 45.031,
Florida Statutes (2013), using the following method (CHECK ONE):
- 28 -
.............
...On filing the certificate of sale,
defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice
of lis pendens shall be foreclosed of all estate or claim in the property and defendant’s right of
redemption as prescribed by section 45.0315, Florida Statutes (2013) shall be terminated, except
as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any....
...The reference to writs of assistance in paragraph 7 is changed to writs
of possession to comply with the consolidation of the 2 writs.
2010 Amendment. Mandatory statements of the mortgagee/property owner’s rights are
included as required by the 2006 amendment to section 45.031, Florida Statutes. Changes are
also made based on 2008 amendments to section 45.031, Florida Statutes, permitting courts to
order sale by electronic means.
Additional changes were made to bring the form into compliance with chapters 718 and
720 and section 45.0315, Florida Statutes, and to better align the form with existing practices of
clerks and practitioners....
...(date) .........., to the highest bidder for cash, except as
prescribed in paragraph 4, at the courthouse located at .......... (street address of courthouse)
.......... in .......... County in .......... (name of city) .........., Florida, in accordance with section
45.031, Florida Statutes (2013), using the following method (CHECK ONE):
- 33 -
........
...On filing the certificate of sale,
defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice
of lis pendens shall be foreclosed of all estate or claim in the property and defendant’s right of
redemption as prescribed by section 45.0315, Florida Statutes (2013) shall be terminated, except
as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any....
CopyPublished | Florida 1st District Court of Appeal | 1984 Fla. App. LEXIS 12708
...We observe further, that since in the awarding of a deficiency judgment consideration must be given, among other things, to the amount bid at the sale, appellants may be heard by timely application to the trial court with respect to any errors or irregularities affecting the sale. Section 45.031(7), Florida Statutes; Cf....
