THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, as successor trustee to JPMorgan Chase Bank, N.A., as trustee on behalf of the Certificate holders of the CWHEQ, Inc., CWHEQ Revolving Home Equity Loan Trust, Series 2006-D, Appellant,
DIANNE D. GLENVILLE, a/k/a DIANE D. GLENVILLE, a/k/a DIANE GLENVILLE; and MARK S. GLENVILLE, Appellees.
from the Circuit Court for Manatee County; John F. Lakin,
Anthony R. Smith and Kendra J. Taylor of Sirote &
Permutt, P.C., Winter Park; and Shaun K. Ramey and Matthew R.
Feluren of Sirote & Permutt, P.C., Fort Lauderdale, for
A. Edwards of The Edwards Law Firm, PL, Sarasota, for
Appellant's motion for rehearing and request for
certification are granted to the extent that the prior
opinion dated January 20, 2017, is withdrawn, and the
attached opinion is issued in its place. The motion for
rehearing en banc is denied. No further motions for rehearing
will be entertained.
Bank of New York Mellon appeals the trial court's order
denying its claim for surplus funds from a foreclosure
sale. Because the bank's claim was untimely,
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. The
record reflects that the underlying property was sold at
public auction on July 2, 2015, and that the bank filed its
claim for surplus funds as a subordinate lienholder on
September 2, 2015, sixty-two days after the date the property
was sold. The trial court denied the bank's claim as
untimely filed. On appeal, the bank argues that a foreclosure
sale is not complete until the clerk issues the certificate
of sale. Because the certificate of sale in this case was
issued on July 6, 2015, the bank claims that it had until
September 4, 2015, to file a claim and that therefore its
September 2, 2015, filing was timely. We disagree.
interpretation of a statute is a question of law, and it is
therefore subject to a de novo review." Mathews v.
Branch Banking & Tr. Co., 139 So.3d 498, 500 (Fla.
2d DCA 2014) (citing W. Fla. Reg'l Med. Ctr., Inc. v.
See, 79 So.3d 1, 8 (Fla. 2012)). "[W]hen the
language of the statute is clear and unambiguous and conveys
a clear and definite meaning, there is no occasion for
resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and 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)).
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 . . .
." (emphasis added)); .031(5) ("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." (emphasis added)). Reading subsection (7)(b) to
require a claim for surplus funds to be filed within sixty
days of the certificate of sale-instead of the
actual sale itself-would render subsection (4) meaningless
and would confuse the meaning of other subsections of the
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). Similarly, in
Dever, this court used the date the property was
sold at auction, not the date the certificate of sale was
issued, as the start date for the sixty-day period. 147 So.3d
at 1047. Although using either date would not have changed
the fact that the banks' claims were untimely, in both
cases this court interpreted the language of the statute to
refer to the date of the actual sale, not the issuance of the
certificate of sale. See Mathews, 139 So.3d at
499-500; Dever, 147 So.3d at 1047.
first time on rehearing, the bank argues that the date of the
sale should be calculated from the date of the issuance of
the certificate of title. In support, it cites Straub v.
Wells Fargo Bank, N.A., 182 So.3d 878, 881 (Fla. 4th DCA
2016), which was published prior to the filing of the
bank's initial brief. In Straub, the Fourth
District held that "[u]nder section 45.01(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." The bank waived this argument by
failing to raise it in its appellate briefs. See
Fla. R. App. P. 9.330(a) (stating that a motion for rehearing
shall not include "issues not previously raised in the
proceeding"); see also Teitelbaum, v. S. Fla. Water
Mgmt. Dist., 176 So.3d 998, 1005 n.3 (Fla. 3d DCA 2015)
(holding that an argument raised for the first time in a
motion for rehearing was waived), review denied,
SC15-1994 (Fla. Mar. 16, 2016); Tillery v. Fla. Dep't
of Juvenile Justice, 104 So.3d 1253, 1255 (Fla. 1st DCA
2013) ("[A]n argument not raised in an initial brief is
waived."); Philip Morris USA, Inc. v. Naugle,
103 So.3d 944, 949 (Fla. 4th DCA 2012) ("It is a rather
fundamental principle of appellate practice and procedure
that matters not argued in the briefs may not be raised for
the first time on a motion for rehearing." (quoting
Ayer v. Bush, 775 So.2d 368, 370 (Fla. 4th DCA
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(1)(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 "[n]otice of sale" that "shall contain .
. . [t]he time and place of sale"); .031(3) (stating
that "[t]he sale shall be conducted at public
auction" and requiring the highest bidder to post a
deposit "[a]t the time of the sale"); .031(5)
(requiring 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"); .031(6)
("When the certificate of title is filed the
sale shall stand confirmed." (emphasis added)).
the bank filed its claim outside the statutory window, we
must affirm the trial court's order denying the claim. In
so doing, we note that the two cases on which the bank relies
on appeal-In re Jaar, 186 B.R. 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 ...