BILLIE SPRINKLE, AS BENEFICIARY TO THE DOROTHY B. WITCHER REVOCABLE TRUST DATED MAY 2, 2007, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DOROTHY B. WITCHER, DECEASED
v.
FOX HOLLOW VILLAGE PROPERTY OWNERS ASSOCIATION, INC.
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The Fifth District Court of Appeal affirmed the trial court's denial of a renewed motion for distribution of surplus foreclosure funds. The appellant, claiming rights as a beneficiary and personal representative, failed to overcome the statutory presumption that the trust (as owner of record when the lis pendens was filed) was entitled to the surplus, and did not provide sufficient evidence of her entitlement to the funds.
The trial court properly denied the renewed motion for surplus funds because the appellant failed to meet her burden of overcoming the statutory rebuttable presumption under section 45.032(2), Florida Statutes, that the trust as owner of record was entitled to the surplus. The appellant provided an insufficient record—including no hearing transcript, no evidence of personal representative appointment, no complete trust document, and no showing of assignment—to demonstrate reversible error.
[1] Foreclosure surplus funds are governed by statute, which establishes a rebuttable presumption that the owner of record on the date of the lis pendens filing is entitled t…
[2] A person claiming surplus foreclosure funds as an assignee of the owner of record must prove entitlement to the court.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Establishes the governing statutory presumption for entitlement to surplus foreclosure funds under section 45.032(2), Fla. Stat.
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Join FLexlaw to unlock all legal intelligenceA foreclosure sale of real property resulted in substantial surplus funds after the foreclosure creditor was paid in full plus post-judgment interest …
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FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA _____________________________
Case No. 5D2024-2404 LT Case No. 2023-CC-196 _____________________________ BILLIE SPRINKLE, AS BENEFICIARY TO THE DOROTHY B. WITCHER REVOCABLE TRUST DATED MAY 2, 2007, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DOROTHY B. WITCHER, DECEASED,
Appellant,
v. FOX HOLLOW VILLAGE PROPERTY OWNERS ASSOCIATION, INC.,
Appellee.
_____________________________
On appeal from the County Court for Citrus County. Edward C. Spaight, Judge. Benjamin C. Haynes, of Haynes Law Group, P.A., Longwood, for Appellant. No Appearance for Appellee.
February 14, 2025 PER CURIAM.
AFFIRMED. BOATWRIGHT and KILBANE, JJ., concur. LAMBERT, J., concurs with opinion.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________
Case No. 5D2024-2404 LT Case No. 2023-CC-196
LAMBERT, J., concurring.
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