Refaie v. Bayview Loan Servicing, LLC

• Decision Date: 14 May 2021
• Docket Number: Case No. 2D19-4780
• Citation: 331 So.3d 749
• Parties: Nick REFAIE, Appellant, v. BAYVIEW LOAN SERVICING, LLC, and Branch Banking and Trust Company, Appellees.
• Court: Florida District Court of Appeals

331 So.3d 749

Nick REFAIE, Appellant,

v.BAYVIEW LOAN SERVICING, LLC, and Branch Banking and Trust Company, Appellees.

Case No. 2D19-4780

District Court of Appeal of Florida, Second District.

Opinion filed May 14, 2021

John R. Hightower, Jr., of JRH.Law PLLC, Temple Terrace; and Dustin D. Deese of Dustin D. Deese, PA, Dade City, for Appellant.

Robert M. Coplen and Elizabeth C. Fitzgerald of Robert M. Coplen, P.A., Largo, for Appellee Branch Banking and Trust Company.

No appearance for Bayview Loan Servicing, LLC.

SMITH, Judge.

Mortgagor and original titleholder Nick Refaie challenges the amended order granting the Renewed Motion for Surplus filed by Branch Banking and Trust Company (BB&T) that directed the disbursement amount of approximately $66,161, plus interest, to BB&T from the court registry following the foreclosure sale and satisfaction of the judgment amount. Because the initial motion for surplus filed by BB&T was untimely, we reverse and remand for further proceedings.

I.

The foreclosure below involved property located on Rollingview Drive in Temple Terrace, Florida. Mr. Refaie was the owner of record of the Rollingview property as defined in section 45.032(1)(a), Florida Statutes (2015). In September 2011 senior lienholder, BankAtlantic, filed a complaint against Mr. Refaie, seeking to foreclose its mortgage lien.¹ A final uniform judgment of foreclosure was entered on November 23, 2015, and on March 8, 2016, a foreclosure sale was held at which BB&T was the highest bidder. A certificate of title was issued in favor of BB&T on March 21, 2016, but it contained the wrong property address and the wrong legal description.² Thereafter, a certificate of disbursements was issued, signed by the Hillsborough County Clerk of Court on March 25, 2016, and docketed on April 4, 2016. This certificate reflected the payment of $112,410 to Bayview in satisfaction of the foreclosure judgment and a remaining $66,161 surplus amount in the clerk's registry pending further order of the court.

Upon BB&T's April 19, 2016, motion, on May 25, 2016, the trial court ordered the clerk to issue a corrected certificate of title bearing the proper legal description for the property sold at the March 8, 2016, foreclosure sale; the clerk thereafter issued the corrected certificate of title on June 16, 2016, which included the proper legal description and property address. Subsequently, on June 20, 2016, BB&T filed a motion to direct the clerk to disburse the $66,161, plus interest, in surplus proceeds from the foreclosure sale, which the trial court granted.

II.

The issue before us is one of statutory interpretation and therefore subject to de novo review. See Borden v. E.-European Ins., 921 So. 2d 587, 591 (Fla. 2006). Mr. Refaie argues on appeal that BB&T untimely filed its claim for the disbursement of surplus proceeds from the foreclosure sale of the Rollingview property where BB&T filed its claim more than sixty days after the certificate of disbursements was issued, contrary to section 45.032(3)(a).³ BB&T instead focuses on the certificate of title and contends that the original certificate of title could not have conveyed title to the Rollingview property because it bore the incorrect legal description and argues it timely filed its surplus claim within the sixty-day window from the corrected certificate of title. Thus, BB&T argues, the sixty-day time period was tolled until the clerk filed the corrected certificate of title on June 16, 2016, making BB&T's claim for the surplus proceeds timely.

We first turn to section 45.032(1)(c), which provides, " ‘Surplus funds’ or ‘surplus’ means the funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements." Section 45.031(7)(b) provides:

Disbursements of proceeds.—

....

CERTIFICATE OF DISBURSEMENTS

The undersigned clerk of the court certifies that he or she disbursed the proceeds received from the sale of the property as provided in the order or final judgment to the persons and in the amounts as follows:

....

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.

(Emphasis added.)

Mr. Refaie maintains that the sixty days to file a claim starts to run from the day the certificate of disbursements is issued—not the certificate of title or the date of the sale of the property . We reach the same conclusion. The Florida Supreme Court reviewed this very issue in Bank of New York Mellon v. Glenville, 252 So. 3d 1120, 1128-29 (Fla. 2018), which originated in this court and involved a situation factually similar to that presented here. In Glenville, a judgment of foreclosure was entered against Diane and Mark Glenville, the record owners of the residential property at issue. Id. at 1123. A judicial sale of the property followed. Id. After the sale, the clerk of court issued certificates of sale and title, respectively, as well as a certificate of disbursements, all of which contained the requisite language regarding a potential surplus of proceeds pursuant to the identical language from section 45.031(1)(a), Florida Statutes (2015), at issue in this appeal. Id. Florida Housing Finance Corporation (Florida Housing), which held a third mortgage on the property, filed a claim for a portion of the surplus proceeds. Id. The Glenvilles subsequently filed a claim for the surplus proceeds remaining after disbursement to Florida Housing. Id. The second mortgage holder, Bank of New York Mellon (Mellon), then filed its claim for the surplus proceeds more than sixty days after the actual foreclosure sale but within sixty days of the clerk's filing of the certificates of sale, title, and disbursements. Id. at 1123-24. Faced with competing claims for the surplus proceeds, the trial court agreed with the Glenvilles' argument that Mellon had untimely filed its claim because it had done so more than sixty days after the foreclosure sale. Id. at 1124. We affirmed the trial court's order, concluding that the language of section 45.031 meant sixty days after the "sale" of the property, not the issuance of the "certificate of sale," as Mellon had argued. Id. (citing Bank of N.Y. Mellon v. Glenville, 215 So. 3d 1284, 1285 (Fla. 2d DCA 2017) ). In doing so, we certified conflict with Straub v. Wells Fargo Bank, N.A., 182 So. 3d 878, 881 (Fla. 4th DCA 2016), in which the Fourth District held that the sixty-day period began to run upon the filing of the certificate of sale. 215 So. 3d at 1286-87.

The Florida Supreme Court accepted jurisdiction based on that certified conflict and concluded that in order to reconcile the various statutes pertaining to surpluses following judicial foreclosure sales, it was compelled to hold that the triggering event for the sixty-day window begins when the clerk files the certificate of disbursements rather than the date of the foreclosure sale. See Glenville, 252 So. 3d at 1126, 1128-29. The court noted that section 45.032(1) defines terms that apply to numerous statutes pertaining to judicial foreclosure sales, not just section 45.032, and that the definition of "surplus" in subsection (1)(c) includes a reference to the filing of the certificate of disbursements. Glenville, 252 So. 3d at 1126 ("[S]ection 45.032(1) defines certain terms that apply not just for purposes of section 45.032 but ‘[f]or purposes of ss. 45.031 - 45.035.’ Section 45.032(1)(c) specifically defines the term ‘surplus’ to mean ‘the funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements. ’ " (second alteration in original) (quoting § 45.032 )). This statutory presumption—that surplus funds are by definition contingent on the certificate of disbursements—implies that the sixty-day period to file a claim seeking disbursement of surplus funds begins to run upon the filing of the certificate of disbursements. See Glenville, 252 So. 3d at 1126-27 (quoting section 45.032(3) for the proposition that the "specific sixty-day period" referenced in each of the subsections regarding determination of payment or entitlement to surplus funds runs for "60 days after the clerk issues a certificate of disbursements ").

To conclude this sixty-day window instead commences upon the filing of the certificate of sale would produce an inconsistent application of sections 45.031(7)(b) and 45.032(3). See Glenville, 252 So. 3d at 1127 ("Ultimately, there cannot be two different sixty-day cutoff periods for filing claims for surplus funds."). We must interpret related statutory sections in pari materia if parts of the statute are unclear or ambiguous. See E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009) ("The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent." (quoting Fla. Dep't of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005) )); Fla. Dep't of Env't Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265-66 (Fla. 2008) ("[I]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent." (alteration in original) (quoting Fla. State Racing Comm'n v. McLaughlin, 102 So. 2d 574, 575-76 (Fla. 1958) )). Following this principle, the supreme court noted that

[a] harmonization of section 45.031 and section 45.032 leads to the conclusion that the sixty-day period for the filing of claims to surplus funds

...