Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LEE COUNTY CLERK OF COURT, Appellant, v. ARMANDO A. GAVIDIA; SPECIALIZED LOAN SERVICING, LLC; and RICHARD DELEKTA, Appellees, No. 2D21-35 May 13, 2022 Appeal from the Circuit Court for Lee County; James R. Shenko, Judge. Michael J. Healy, General Counsel for Lee County Clerk of Court and Comptroller, Fort Myers, for Appellant. Bradley S. Donnelly of Goddy & Donnelly, PLLC, Naples, for Appellee Richard Delekta. Rosannie T. Morgan of eXL Legal, PLLC, St. Petersburg; and Joseph G. Paggi, III, of DeLuca Law Group, Fort Lauderdale, for Appellee Specialized Loan Servicing, LLC. No appearance for Appellee Armando A. Gavidia. SLEET, Judge. The Lee County Clerk of Court challenges the trial court's final order granting intervenor Richard Delekta's motion for reimbursement of money damages. Because the trial court erred in ordering that the Clerk refund the registry fees to Delekta, we reverse. On October 24, 2018, the trial court entered a final foreclosure judgment in favor of Specialized Loan Servicing, LLC (Bank), against Armando and Anna Gavidia. On January 4, 2019, the Gavidias and the Bank separately filed motions to cancel the foreclosure sale. The Gavidias alleged that payment had been made to reinstate the loan, and they attached documents reflecting the amount the Bank required for reinstatement and that a wire transfer from Mrs. Gavidia's account in the required amount had been made on January 3, 2019. The Bank's motion included the reason for cancelation as "Plaintiff has received confirmation funds have been received [sic]; however, not yet applied. Plaintiff wishes to 2 cancel the sale to provide time to properly review and apply the funds for a possible reinstatement." Neither motion was heard before January 7, 2019, when Delekta purchased the subject property at a public auction as a good faith third-party purchaser without notice of any irregularities of the foreclosure sale. Delekta deposited $208,400 into the circuit court registry to purchase the subject property and paid to the Clerk $3,133.50 for the Clerk's registry fees and $1,448.80 for documentary stamps. The Clerk issued a certificate of sale and a certificate of title to Delekta, and it filed a certificate of disbursement of excess proceeds, showing (1) the disbursement of $161,180.71 to the Bank, (2) the disbursement of $6,795.50 to the Bank's attorneys, and (3) a surplus of $40,423.79 retained by the Clerk. On January 9, 2019, the Bank filed its Motion to Vacate Foreclosure Sale and Certificate of Sale, which the trial court later heard and denied. The Gavidias appealed the order, and this court reversed and remanded for a new hearing in which the trial court should apply the correct legal standard and 3 consider the equitable grounds alleged. Gavidia v. Specialized Loan Servicing LLC, 301 So. 3d 413, 418 (Fla. 2d DCA 2020). On June 2, 2020, the Bank renewed its motion to vacate foreclosure sale and certificate of sale. Delekta later filed an Emergency Motion to Intervene and a Motion for Reimbursement for Money Damages and Motion for Return, Release, and Disbursement of Surplus Funds. Following a hearing, the trial court granted the Bank's motion and vacated the foreclosure sale, certificate of sale, and certificate of title. The trial court initially reserved on the question of the amount of reimbursement and damages to be paid to Delekta but later held an evidentiary hearing and entered the order on appeal, granting Delekta's motion for reimbursement of money damages. Among other things, the trial court ordered that the Clerk "shall reimburse and pay to [Delekta] the amount of $3,133.50 which was the Clerk's Registry Fees for the sale paid by [Delekta]." On appeal, the Clerk argues that ordering such was error. We agree. 4 Section 45.031(1)(a), Florida Statutes (2018), sets forth the requirements for final judgments of foreclosure, providing that [i]n the order or final judgment, the court shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof, on terms and conditions specified in the order or judgment. (Emphasis added.) Here, the final judgment of foreclosure entered by the trial court on October 24, 2018, states that "the clerk of this court shall sell the property at public sale on January 7, 2019." (Emphasis added.) The mandatory language of the final judgment obligated the Clerk to conduct the foreclosure sale on the date ordered. "Where [the clerk] is required to hold money in the registry of the court [such as] where there is a third-party bidder at the foreclosure sale, the clerk provides a separate and distinct function for which he must collect a charge pursuant to section 28.24(14)."1 Powers v. First Fed. Sav. & 1 Section 28.24(14), Florida Statutes (1979), cited in Powers has been renumbered as section 28.24(10) in the 2018 version of the statute, which is the applicable version here. 5 Loan Ass'n of Jacksonville, 420 So. 2d 865, 867 (Fla. 1982); see also Bauer v. Resol. Tr. Corp., 621 So. 2d 521, 523 (Fla. 4th DCA 1993) ("[W]here the clerk is required to hold money in the court registry, he must collect a fee pursuant to section 28.24(13)."). "[T]he clerk 'earns' the . . . registry fees when the services are rendered, i.e., when the judicial sale takes place and the funds are received into the court registry." Wilken v. N. Cnty. Co., 670 So. 2d 181, 182 (Fla. 4th DCA 1996) (citing Bauer, 621 So. 2d at 522). Here, the Clerk earned the registry fee when the sale took place on January 7, 2019. Although the issue of refunding the registry fees is one of first impression for this court, we can look to the Fourth District's handling of such cases for guidance. In Bauer, the Fourth District was presented with an appeal from an order directing the Clerk of the Circuit Court of Palm Beach to refund the clerk's fees which were withheld when the clerk refunded the purchase price in a foreclosure. In that case, a summary judgment was entered in favor of the Resolution Trust Corporation (RTC) in its suit to foreclose a mortgage. The Clerk of the Circuit Court of Palm Beach County sold the 6 property to a third-party bidder, and RTC subsequently filed a motion to set aside and reset the foreclosure sale for another date. The trial court granted the motion, set aside the sale, and ordered the clerk to resell the property. The clerk returned the bid amount to the third-party bidder but retained the registry and sale fees. The third-party bidder filed a motion to tax all costs against RTC, but the trial court entered an order denying the motion and ordering the clerk to refund the fees retained. The Fourth District concluded that "the trial court erred in ordering the [c]lerk to refund the fees collected." Bauer, 621 So. 2d at 523. The court noted that "[i]t was RTC's mistake that resulted in the foreclosure sale being set aside. The record does not reflect any mistake, neglect[,] or wrongdoing on the part of the [c]lerk." Id. Even where there is no culpable party to blame for the foreclosure sale being set aside or later invalidated, the Fourth District has still held that the clerk is not required to refund the registry fees. In Wilken, the trial court ordered the clerk of the circuit court to refund registry and sales fees to a successful bidder at a foreclosure sale where the 7 mortgagor/debtor, prior to the sale and without written notice to the clerk, filed a suggestion of bankruptcy in federal court, requiring the sale to be later invalidated. 670 So. 2d at 181. Relying on Bauer, the Fourth District reversed the order requiring the clerk to refund the registry fees, holding, "[T]hat the sale is later invalidated through no blunder of the clerk is of no consequence in determining whether or not the clerk is entitled to collect his or her administrative costs." Id. at 182. Similarly, in Palm Beach Horizons, Inc. v. Washington Mutual Bank, 744 So. 2d 1074, 1075 (Fla. 4th DCA 1999), the Fourth District had before it an instance where there was no culpable party. In that case, the purchaser of property at a foreclosure sale moved for the return of its entire bid deposit after the mortgagor/debtor filed a suggestion of bankruptcy. The trial court ordered that the clerk return the bid deposit minus court clerk's registry and sale fee, and the purchaser appealed. The Fourth District concluded that "[t]he record does not disclose anything to indicate misfeasance by the clerk. . . . The clerk conducted the sale without knowing the debtor had invoked bankruptcy protection and the clerk 8 collected the mandatory statutory fees. Appellant, the successful bidder, also proceeded without knowing about the bankruptcy stay." Id. Still, even with no culpable party, the court affirmed the trial court's order requiring the return of the bid deposit minus the clerk's registry and sale fee. Here, like in Wilken and Palm Beach Horizons, there was no one to blame for vacation of the foreclosure sale. On January 4, 2019, the Gavidias and the Bank separately filed motions to cancel the foreclosure sale, neither of which were heard before the January 7, 2019, scheduled foreclosure sale. The clerk conducted the sale without notice that these motions had been filed, and Delekta proceeded without notice of any irregularities of the foreclosure sale. Delekta deposited $208,400 into the Circuit Court Registry to purchase the subject property and paid to the Clerk $3,133.50 for the Clerk's registry fees. The Clerk earned the registry fees as soon as the sale took place, and the fact "that the sale [was] later invalidated through no blunder of the [C]lerk is of no consequence in determining whether or not the [C]lerk is entitled to collect his or her administrative costs." See Wilken, 9 670 So. 2d at 182. As the Fourth District noted in quoting the Clerk of Palm Beach County: Foreclosure sales are attractive because of the prospective profits, but they are often plagued with problems because they are based on foreclosures, against the will of the owner/debtor. Thus, unlike an ordinary sale between a willing buyer and a willing seller . . . [buyers at foreclosure sales] choose to become involved in a procedure that is not without risk. Id. (alteration in original). Reversed. NORTHCUTT and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 10