Eduardo F. Eduartez, Appellant,
Federal National Mortgage Association, et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 14-27809 Rodney Smith,
N. Sadlak, P.A., and Kenzie N. Sadlak, for appellant.
Straley & Otto, P.A., and Shelley J. Murray and Brian T.
Meanley (Fort Lauderdale), for appellee Sunshores Condominium
Association, Inc; The Griffith Law Firm, P.A., and Derek R.
Griffith, for appellee Degel, LLC.
LOGUE, SCALES and LINDSEY, JJ.
Eduardo Eduartez, defendant/mortgagor below, appeals a trial
court order denying Eduartez's rule 1.540 motion to
vacate an earlier trial court order disbursing surplus funds
- realized after a foreclosure sale of Eduartez's
condominium - to appellee Sunshores Condominium Association,
Inc. ("Association"). Although the trial court, as
a matter of statutory construction, incorrectly determined
that the sixty-day window for subordinate lienholders to file
claims for surplus proceeds commenced upon the clerk's
issuance of a Certificate of Title, rather than upon the
foreclosure sale, we nevertheless affirm the trial
court's order denying Eduartez's motion because the
September 6, 2016 disbursement order was merely erroneous
rather than void.
Relevant Facts and Procedural Background
The Final Judgment of Foreclosure
March 2011, Eduartez executed and delivered to JPMorgan Chase
Bank a promissory note secured by a mortgage on a residential
condominium unit Eduartez owned in North Miami Beach. In
2014, Eduartez defaulted on his obligations, which led JP
Morgan to file its mortgage foreclosure complaint in October
2014. The complaint named Association as a subordinate
lienholder by virtue of Association's July 2014 lien for
approximately $7, 000 in unpaid assessments. Association
answered JP Morgan's foreclosure complaint and in its
affirmative defenses alleged that, should the property be
sold at a foreclosure sale, Association would be entitled to
all surplus proceeds. In March 2015, Federal National
Mortgage Association was substituted for JP Morgan as the
plaintiff in the foreclosure case, and it obtained a final
foreclosure judgment on March 17, 2016.
In relevant part, Paragraph 8 of the final judgment reads:
Jurisdiction. The Court retains jurisdiction
of this action to enter further orders that are proper,
including, without limitation, writs of possession and
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 THE SALE PROCEEDS PURSUANT
TO THE FINAL JUDGMENT.
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.
(Bold and all capital letters in original;
underlining emphasis added).
final judgment, the trial court set April 21, 2016, as the
date of the foreclosure sale.
The Foreclosure Sale
a pending rehearing motion (ultimately denied by the trial
court), the trial court cancelled the April 21, 2016 initial
foreclosure sale and, on May 20, 2016, the clerk rescheduled
the foreclosure sale for June 21, 2016. Consistent with the
above-cited language appearing in paragraph 8 of the final
judgment, the clerk's notice of the rescheduled
foreclosure sale contained the following notation:
ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS FROM THE SALE,
IF ANY, OTHER THAN THE PROPERTY OWNER AS OF THE DATE OF LIS
PENDENS MUST FILE A CLAIM WITHIN 60 DAYS AFTER THE
(All capital letters in original; underlining emphasis
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
The Certificates of Title and Disbursements
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. IF YOU FAIL TO FILE A CLAIM,
YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60
DAYS, ONLY THE OWNER OF ...