Florida 5th DCA Holds Trial Court Incorrect Distributing Foreclosure Surplus to Third Party Bidder

The 5th DCA recently ruled that the trial court erred in distributing surplus to a 3rd party purchaser.   FL Statute 45.033, states that surplus foreclosure proceeds are generally disbursed to owner of record (except in certain limited circumstances).  Surplus proceeds are that which a bidder bids over the final judgment amount owed to the bank; those excess funds are called surplus funds of the auction.  They typically go to the owner of record on the date that the lis pendens was filed/recorded; after any junior liens (2nd mortgage, association assessments due, etc) are paid off, if any exist.

There has been an increase in illegal claims by 3rd party bidders themselves to foreclosure surplus when they are not entitled to such.   They are essentially getting a refund of their money for making a poor business decision.  The 5th DCA here put a stop to this practice holding that it is contrary to Florida law.

Opinion here.


5th and 2nd DCAs Clarify Hicks Opinion as Well as Pleading Requirements to Meet Statute of Limitations

The 5th DCA recently issued Klebanoff v. Bank of N.Y. Mellon, and the 2nd DCA Huntington National Bank v. Watters, which clarify the pleadings requirements for lenders filing subsequent foreclosure actions.

Previously, the Court ruled in Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015) that the bank could not foreclose as it alleged a default date more than 5 years before the new complaint was filed, and thus under Bartram, could not prevail.  But the 5th DCA said not so fast.  The Court stated that Hicks can only be looked at upon its very specific set of facts, as after all, and appeal can only review the law based upon the facts at the trial court level; and sometimes this leads to broad generalizations that do not apply to other sets of facts.  Here, the bank has specifically stipulated to proceed to trial only upon the initial default date (that was more than 5 years prior to the re-filing of the case).  Based on that fact alone, the bank could not prevail as the default date alleged was beyond the statute of limtations.

The Court clarified in Klebanoffi and Watters finding that as long as the bank alleged the prier default date AND that every mortgage payment from that default date onward was due, then the bank had met the statute of limitations.  This is because under Bartram, each missed monthly payment is a new default the bank can allege and use as a basis for foreclosure.

So as long as the bank alleged the old default and all subsequent payments were due, a continuous default including defaults withing the statute of limitations period, the bank satisfies its requirement that there is still a present default within the statute of limitations.  And the bank must prove this continuous default at trial or summary judgment to prevail.

These cases will surely make it easier for banks to foreclose upon old cases and defaults as all it must allege now is the old default date and all subsequent payments have not been made; a continuous state of default; as typically borrowers have not made payments or cured the default.  This should put some clarity into the pleadings requirements the bank must follow when alleging old default dated in a new foreclosure action.