              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT

THE BANK OF NEW YORK MELLON                 )
FKA THE BANK OF NEW YORK, as                )
successor trustee to JPMorgan Chase         )
Bank, N.A., as trustee on behalf of the     )
Certificateholders of the CWHEQ, Inc.,      )
CWHEQ Revolving Home Equity Loan            )
Trust, Series 2006-D,                       )
                                            )
             Appellant,                     )
                                            )
v.                                          )   Case No. 2D15-5198
                                            )
DIANNE D. GLENVILLE A/K/A DIANE             )
D. GLENVILLE A/K/A DIANE                    )
GLENVILLE and MARK S. GLENVILLE,            )
                                            )
             Appellees.                     )
                                            )

Opinion filed January 20, 2017.

Appeal from the Circuit Court for Manatee
County; John F. Lakin, Judge.

Anthony R. Smith and Kendra J. Taylor
of Sirote & Permutt, P.C., Winter Park;
and Shaun K. Ramey and Matthew R.
Feluren of Sirote & Permutt, P.C.,
Fort Lauderdale, for Appellant.

Sheryl A. Edwards of The Edwards Law
Firm, PL, Sarasota, for Appellees.


SLEET, Judge.
              The Bank of New York Mellon appeals the trial court's order denying its

claim for surplus funds from a foreclosure sale.1 Because the bank's claim was

untimely, we affirm.

              Under section 45.031(7)(b), Florida Statutes (2015), any person claiming a

right to surplus funds must file a claim with the clerk of court within sixty days of the

foreclosure sale. The record reflects that the underlying property was sold at public

auction on July 2, 2015, and that the bank filed its claim for surplus funds as a

subordinate lienholder on September 2, 2015, sixty-two days after the date the property

was sold. The trial court denied the bank's claim as untimely filed. On appeal, the bank

argues that a foreclosure sale is not complete until the clerk issues the certificate of

sale. Because the certificate of sale in this case was issued on July 6, 2015, the bank

claims that it had until September 4, 2015, to file a claim and that therefore its

September 2, 2015, filing was timely. We disagree.

              "The interpretation of a statute is a question of law, and it is therefore

subject to a de novo review." Mathews v. Branch Banking & Tr. Co., 139 So. 3d 498,

500 (Fla. 2d DCA 2014) (citing W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla.

2012)). "[W]hen the language of the statute is clear and unambiguous and conveys a

clear and definite meaning, there is no occasion for resorting to the rules of statutory

interpretation and construction; the statute must be given its plain and obvious




              1
               Diane and Mark Glenville were the property owners and defendants in
the foreclosure action. They are entitled to the surplus funds remaining with the clerk
more than sixty days after the foreclosure sale pursuant to section 45.031(7)(b), Florida
Statutes (2015).
                                             -2-
meaning." Gulf Atl. Office Props., Inc. v. Dep't of Revenue, 133 So. 3d 537, 539 (Fla.

2d DCA 2014) (quoting Hess v. Walton, 898 So. 2d 1046, 1049 (Fla. 2d DCA 2005)).

               This court has previously explained that "the language in section

45.031(7)(b) is clear and unambiguous: any person claiming a right to the surplus funds

must file a claim with the clerk no later than sixty days after the sale." Dever v. Wells

Fargo Bank Nat'l Ass'n, 147 So. 3d 1045, 1047 (Fla. 2d DCA 2014); see also Mathews,

139 So. 3d at 500 ("The language of section 45.031(7)(b) is clear and unambiguous in

requiring that any person claiming a right to the surplus funds 'MUST FILE A CLAIM

WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE.' " (emphasis

omitted)). This subsection only refers to the "sale," not the "certificate of sale."

§ 45.031(7)(b). This is significant because section 45.031 assigns particular and

distinct meanings to the terms "sale" and "certificate of sale" and does not use them

interchangeably. See § 45.031(4) ("After a sale of the property the clerk shall promptly

file a certificate of sale and serve a copy of it on each party . . . ." (emphasis added));

.031(5) ("If no objections to the sale are filed within [ten] days after filing the certificate of

sale, the clerk shall file a certificate of title and serve a copy of it on each party."

(emphasis added)). Reading subsection (7)(b) to require a claim for surplus funds to be

filed within sixty days of the certificate of sale—instead of the actual sale itself—would

render subsection (4) meaningless and would confuse the meaning of other subsections

of the statute.

               Additionally, such a reading would be inconsistent with this court's prior

case law interpreting section 45.031(7)(b). In Mathews, this court explained that the

bank "was required to file a claim with the clerk within sixty days after the sale of the



                                              -3-
property to preserve any claim it may have had to the surplus funds." 139 So. 3d at 500

(emphasis added). Similarly, in Dever, this court used the date the property was sold at

auction, not the date the certificate of sale was issued, as the start date for the sixty-day

period. 147 So. 3d at 1047. Although using either date would not have changed the

fact that the banks' claims were untimely, in both cases this court interpreted the

language of the statute to refer to the date of the actual sale, not the issuance of the

certificate of sale. See Mathews, 139 So. 3d at 499-500; Dever, 147 So. 3d at 1047.

              Accordingly, the bank filed its claim outside the statutory window, and we

must affirm the trial court's order denying the claim. In so doing, we note that the two

cases on which the bank relies on appeal—In re Jaar, 186 B.R. 148, 154 (Bankr. M.D.

Fla. 1995), and Shlishey the Best, Inc. v. CitiFinancial Equity Services, Inc., 14 So. 3d

1271, 1275 (Fla. 2d DCA 2009)—are inapplicable here because they both concern a

mortgagor's right of redemption, which is governed by section 45.0315, not section

45.031.

              Affirmed.

LaROSE and BADALAMENTI, JJ., Concur.




                                            -4-
