2007 v. Fox Hollow Village Property Owners Association, Inc., Appellee. (2025)

Affirmed.

The appeal in this case challenges the trial court's unelaborated order denying Appellant's post-final judgment renewed motion for the distribution of surplus funds generated after a foreclosure sale of the real property described in the final judgment. I concur with the majority's affirmance of the appealed order and briefly write to explain why.

The distribution of surplus foreclosure funds or proceeds is governed by the plain and unambiguous language of section 45.032(2), Florida Statutes (2023). This subsection provides:

(2) There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim. A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove to the court that such person is entitled to the funds. At any hearing regarding such entitlement, the court shall consider the factors set forth in s. 45.033 in determining whether an assignment is sufficient to overcome the presumption. It is the intent of the Legislature to abrogate the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale.

§ 45.032(2), Fla. Stat. (2023).

The record here is undisputed that the “owner of record” of the subject real property on the date the notice of lis pendens was filed was The Dorothy B. Witcher Revocable Trust Dated May 2, 2007. It is also clear that there were no subordinate lienholders to be paid from the surplus funds. From the sale proceeds, Appellee was paid in full the money that it was owed under the final judgment, plus post-judgment interest; and the clerk of court received her statutory fee for conducting the sale. Accordingly, under the clear directive of section 45.032(2), a rebuttable legal presumption existed that The Dorothy B. Witcher Revocable Trust Dated May 2, 2007, as owner of record, was entitled, absent an assignment of its rights, to the distribution of the substantial surplus funds remaining from the foreclosure sale.

However, the renewed motion for surplus funds at issue was not filed by the Trustee on behalf of the Revocable Trust. Instead, Appellant filed the motion as “beneficiary” of the Revocable Trust and as “Personal Representative of the Estate of Dorothy B. Witcher, Deceased.” There is no transcript in our record from the hearing held on the renewed motion showing what evidence or argument may have been presented by Appellant to the trial court in support of her motion, nor is there anything in the record to show that Appellant was ever appointed as personal representative of the estate. To that end, Appellant's renewed motion suggests that no estate was ever opened. The record also does not contain a complete copy of the Revocable Trust upon which Appellant claims her interest as a beneficiary, nor is there sufficient indicia that the Trust had assigned its interest in the surplus funds.

From these combined circumstances, I cannot fault the trial court for its denial order. Nor did Appellant meet her burden here of providing a sufficient record to show how the trial court reversibly erred.¹

FOOTNOTES

1.   Lastly, I note that Appellant now describes herself in the initial brief as the Trustee of The Dorothy B. Witcher Revocable Trust Dated May 2, 2007. This was not the capacity in which she brought her initial and renewed motions for surplus funds to the trial court. Had she done so, the result below may well have been different.

Per Curiam.

Boatwright and Kilbane, JJ., concur. Lambert, J., concurs with opinion.