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Recovering Clerk of Court Fees After Vacated Foreclosure Sale – It Can Be Tricky

Filing suit in court is always accompanied by additional administrative costs and fees, including clerk of court fees. Recently Florida’s Second District Courts of Appeal provided clarification on the ability to recover some, if not all, of those fees following vacation of a foreclosure sale.

The most recent opinion, handed down in May 2022, addressed a situation in which this became a central issue.  Ultimately, the ruling argues for the idea that statutory language prevails in determining whether any particular party is entitled to recover fees expended in relation to a lawsuit. The case surrounds whether a good faith third-party purchaser is entitled to recover its clerk fees where the foreclosure sale is ultimately vacated, after the sale.

In Lee County Clerk of Court v. Armando A. Gavidia, et al, Case No. 2D21-35 (Fla. 2d DCA, 2022), a mortgage provider, and the then owner of the property at issue, filed to cancel the pending foreclosure sale prior to the sale date. Unfortunately, neither motion was heard prior to the sale date. The property was purchased by a good faith third-party who deposited the purchase amount with the court registry, along with the registry fees and documentary stamps. At the time of the sale, no irregularities were noticed or reported. The clerk, based on all information available at that time, issued the certificate of sale and a certificate of title to the third-party purchaser, along with a certificate of disbursement of excess proceeds to be retained by the clerk.

Following the vacation of the sale, the third-party purchaser was awarded return of the $3,133.50 in clerk registry fee, in addition to other costs. The clerk appealed. The Appellate Court focused on the statutory directives and relied on established case law from other districts. Sections 45.031(1)(a) and 28.24(13), Florida statutes work together to force a clerk to both set the sale, upon an order of the court, and to collect a fee related to work required to accomplish that mandate. Once the ordered sale takes place, the Court reasoned, the clerk has “earned” that statutory fee.

Further, as this was the first time this Court addressed this matter, it also relied on case law from the 4th DCA that found where a sale is “invalidated through no blunder of the clerk” the clerk is still entitled to his or her administrative costs. Moreover, even where no party holds blame for the vacation of a foreclosure sale, the clerk is entitled those statutory administrative fees.

So, when is a party in Florida entitled to recover clerk fees? Well, it depends on when the foreclosure sale happens. Remember, a technical error in process and procedure may make the ultimate difference. Therefore, it is important to rely on your legal counsel, pay attention to timing, and ensure that all loose ends are tied up prior to closing any open court matter.

Posted in Assessment Collection, Condominium Association, Court Decisions of Importance, Foreclosure, Homeowners Association
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