REAL ESTATE: MORTGAGE FORECLOSURE: SURPLUS FUNDS: SUBORDINATE LIENHOLDER WAIVED ITS RIGHT TO SURPLUS FUNDS BY FAILING TO CLAIM THEM WITHIN SIXTY DAYS OF THE SALE: FAILURE TO RECEIVE ACTUAL NOTICE WAS NOT AN EXCUSE BECAUSE SUBORDINATE LIENHOLDER RECEIVED AT LEAST CONSTRUCTIVE NOTICE BECAUSE CLERK PUBLISHED FINAL JUDGMENT AND POSTED CERTIFICATE OF DISBURSEMENT ON ITS DOCKET: EQUITY: EQUITY FOLLOW THE LAW AND CANNOT BE USED TO ELIMINATE ITS ESTABLISHED RULES

Saulnier v. Bank of American, N.A., ___ So. 3d ___, 40 Fla. L. Weekly D727 (Fla. 4th DCA March 25, 2015)

The subordinate lienholder waived its right to surplus funds by failing to claim them within sixty days after the foreclosure sale. The surplus lienholder’s claim that it did not receive the final judgment or certificate of disbursements did not alter the result: “First, sections 45.031 and 45.032 [Florida Statutes] do not contain any provision permitting a court to excuse a subordinate lienholder’s untimely claim on the ground that it did not receive actual notice. Second, the final judgment facially indicate[d] that a copy thereof was sent to the subordinate lienholder, and the record contain[ed] no evidence indicating that the subordinate lienholder did not receive such notice. Third, even if [the court] assume[d] that the subordinate lienholder did not receive actual notice, the record indicate[d] that the clerk published the final judgment and posted the certificate of disbursements on its docket. Therefore, the subordinate lienholder received at least constructive notice that it had to file a claim to the surplus no later than (or within) sixty days after the sale, and that if it failed to file a timely claim, then it would not be entitled to any surplus.” The court invoked the principle that “equity follows the law and cannot be used to eliminate its established rules.”

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