Bunnie Straub v. Wells Fargo Bank, N.A. Chris Straub, JP Morgan Chase Bank, National Association, etc., and Faircondo, Inc., a Condominium Association

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

BUNNIE STRAUB,
Appellant,

v.

WELLS FARGO BANK, N.A., CHRIS STRAUB, JP MORGAN CHASE
BANK, NATIONAL ASSOCIATION, as successor in interest to
WASHINGTON MUTUAL BANK f/k/a WASHINGTON MUTUAL BANK,
F.A., and FAIRCONDO, INC., a Condominium Association,
Appellees.

No. 4D14-2604

[January 6, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Susan R. Lubitz, Judge; L.T. Case No.
502012CA011910AW.

Ronald E. D’Anna of Goede, Adamczyk, Deboest & Cross, PLLC, Boca
Raton, for appellant.

Susan Capote and Joseph D. Wargo of Wargo & French, LLP, Miami,
for appellee JP Morgan Chase Bank, N.A.

ON COMBINED MOTION FOR REHEARING AND REHEARING EN BANC

STEVENSON, J.

We deny the motion for rehearing and rehearing en banc. However, we
withdraw our previously issued opinion and substitute the following.

This case involves a foreclosed homeowner who is battling two
subordinate lienholders1 for surplus proceeds following a judicial
foreclosure sale. The precise issue is whether the subordinate lienholders
filed their claims in a timely manner. The trial court determined the claims
of the subordinate lienholders were timely where they were filed more than

1Appellee, JP Morgan Chase Bank, is one of two subordinate lienholders. The
second subordinate lienholder is the condominium association, Faircondo, Inc.
Faircondo assigned its lien to an individual who is not a party to this appeal.
sixty days after the foreclosure auction, but within sixty days of the
issuance of the certificate of title. We affirm.

“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
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. The final judgment of mortgage foreclosure was issued
on May 2, 2013. The property was later sold at public auction on October
31, 2013, and the certificate of sale was filed by the clerk of court on the
same day. The certificate of title was filed by the clerk on February 7,
2014. The bank filed its claim of lien to the surplus funds on January 21,
2014, within sixty days of the clerk’s filing of the certificate of title, but
almost ninety days after the filing of the certificate of sale. The
association’s assignee filed her claim on April 8, 2014, also within sixty
days of the clerk’s filing of the certificate of title, but well over 100 days
after the filing of the certificate of sale.

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 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. The
statute provided:

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.

Id. at 202 (emphasis added). Strasser, the property owner, exercised her
right of redemption after the public sale and after issuance of the
certificate of sale, but before issuance of the certificate of title. The court
was thus presented with one of the issues at bar—that being, the definition
of the word “sale” following a judicial foreclosure. The court found:

“[I]n enacting this statute, the Legislature failed to define or
indicate the intended meaning of the word ‘sale’. Therefore, it
is necessary that we do so.

Webster defines ‘sale’ as ‘a contract whereby the absolute
or general ownership of property is transferred from one
person to another for a price or sum of money, or, loosely, for
any consideration.’

A sale has similarly been defined in Edwards v. Baldwin
Piano [Co., 83 So. 915 (Fla. 1920)]; Mathews v. Holloway, [90
So. 924 (Fla. 1922)]; State [ex rel. Benevolent & Protective
Order of Elks, Lodge No. 1529 v. Livingston, 30 So. 2d 740 (Fla.
1947)]. In accordance therewith, a judicial sale has been held
not to be final and complete until, confirmed by the trial court.
Macfarlane v. Macfarlane, [39 So. 995 (Fla. 1905)]. Inasmuch
as the Legislature is presumed to know the meanings of words
and rules of grammar (State ex rel. Hanbury v. Tunnicliffe, [124
So. 279 (Fla. 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

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 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. In
doing so, there is no indication that the legislature intended to change the
plain meaning of the word “sale” used elsewhere in the statute. 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. Stat. (2014). A subordinate lienholder’s claim to surplus
from the sale is timely under section 45.032(2) when it is filed no later
than sixty days after the clerk issues and files the certificate of title.
Accordingly, we affirm.

Affirmed.

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GROSS and TAYLOR, JJ., concur.

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