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Eduartez v. Federal National Mortgage Association

Florida Court of Appeals, Third District

June 13, 2018

Eduardo F. Eduartez, Appellant,
v.
Federal National Mortgage Association, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lower Tribunal No. 14-27809 Rodney Smith, Judge.

          Kenzie 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.

          Before LOGUE, SCALES and LINDSEY, JJ.

          PER CURIAM.

         Appellant 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.

         I. Relevant Facts and Procedural Background

         A. The Final Judgment of Foreclosure

         In 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 deficiency judgments.
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).

         In the final judgment, the trial court set April 21, 2016, as the date of the foreclosure sale.

         B. The Foreclosure Sale

         Due to 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 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. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY THE OWNER OF ...

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