Appeals Court Precluded from Considering Claim of Strict Construction of Statute Governing Legal Notice Concerning Foreclosure Rendering it Unconstitutional

Posted on November 23, 2016

In Shelton v. Bank of N.Y. Mellon, No. 2D16-952, 2016 WL 6609686 (Fla. 4th DCA 2016), the 12532 Herons Path Residential Land Trust, also known as the trust agreement, challenges the order confirming the foreclosure sale.  Michael Shelton, trustee, was a defendant in the foreclosure action in which judgment was entered into on June 25, 2015. As of September 24, 2013 Shelton was the record title owner of the property. November 10, 2015 the property was sold via public sale. On November 20, 2015 Shelton filed his objection to the sale, which the court denied. The court then ratified the sale of the property and issued the certificate of title to The Bank of New York Mellon. On appeal, Shelton contends that the published notice of foreclosure sale did not comply with section 702.035 Florida Statues (2014) “Legal notice concerning foreclosure proceedings” and therefore was defective.

Section 702.035 provides,

Whenever a legal advertisement, publication, or notice relating to a foreclosure proceeding is required to be placed in a newspaper, it is the responsibility of the petitioner or petitioner’s attorney to place such advertisement, publication, or notice. For counties with more than 1 million total population as reflected in the 2000 Official Decennial Census of the United States Census Bureau as shown on the official website of the United States Census Bureau, any notice of publication required by this section shall be deemed to have been published in accordance with the law if the notice is published in a newspaper that has been entered as a periodical matter at a post office in the county in which the newspaper is published, is published a minimum of 5 days a week ….”.

Shelton asserted that the notice of sale was insufficient because it was printed in a paper that was published on a weekly basis when the statue required that the paper be published a minimum of 5 days a week. Shelton also asserted that according to the 2010 U.S. Census, Hillsborough County has a population of over one minion people. Although in 2000, the year mentioned in the statue, Shelton acknowledges that Hillsborough County had a population of 998,948. The argument has been made that the strict construction of the statue renders the statue a special law that is unconstitutional as it is applied because it “applie[s] to a particular population seize and [is] tied to a specific date, so that no other entities could ever fall within the confines of the statue”.

In the second issue at hand, Shelton argued that the court erred in denying his motion to set aside the sale because the Bank failed to provide him with an estoppel letter. This letter would allow Shelton to exercise his right of redemption and he relied on Section 701.04 Florida Statue (2014) for his argument. Section 701.04 “Cancellation of mortgages, liens, and judgments” states,

“(1) Within [fourteen] days after receipt of the written request of a mortgagor, … the holder of a mortgage shall deliver or cause the servicer of the mortgage to deliver to the person making the request … an estoppel letter setting forth the unpaid balance of the loan secured by the mortgage.”

The Courts raised an issue that was not addressed by either party in this case. The Court holds that Shelton did not fulfill the requirements of the Florida Rules of Civil Procedure for drawing into question the constitutionality of a state statue.  Florida Rule of Civil Procedure 1.071 titled “Constitutional Challenges to State State or County or Municipal Charter, Ordinance, or Franchise; Notice by Party” provides that

“A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must promptly

(a) file a notice of constitutional question stating the question and identifying the paper that raises it; and

(b) serve the notice and the pleading, written motion, or other paper drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise on the Attorney General or the state attorney of the judicial circuit in which the action is pending, by either certified or registered mail. 

Service of the notice and pleading, written motion, or other paper does not require joinder of the Attorney General or the state attorney as a party to the action.”

Nothing in the record before the court indicates that Shelton complied with these requirements to served the Attorney General or State Attorney. Thus, the Court can not consider the constitutional matter at hand.

The Court then goes on to discuss Florida Statues (2014) Section 45.031 as the relevant statue for this case, notwithstanding the constitutional issue mentioned above. Section 45.031 “Judicial sales procedures,” provides

“in any sale of real or personal property under an order or judgment, the procedures provided in this section and [sections] 45.0315–45.035 may be followed as an alternative to any other sale procedure if so ordered by the court”.

The final judgment entered into in this cases required that the property be sold at public sale and in accordance with section 45.031. Subsection (2) of 45.031 provides, “Publication of sale.—Notice of sale shall be published once a week for 2 consecutive weeks in a newspaper of general circulation, as defined in chapter 50, published in the county where the sale is to be held.”.

Shelton does not challenge the Bank’s notice under Section 45.031, rather he challenges the legal notice concerning the foreclosure proceeding under section 702.035 Florida Statues (2014), therefore the Court held that Shelton is not entitled to relief on his first issue.

In Shelton’s second issue, he challenged the courts ruling in which the court denied his motion to set aside the sale because the Bank failed to provide him with an estoppel letter which would allow him to exercise his right of redemption. Shelton’s argument is based on Section 701.04 Florida Statues (2014), referenced above, concerning the delivery of an estoppel letter for the unpaid balance of the loan secured by the mortgage.  Shelton’s argument is faulty because it should have relied on Section 45.0315 which governs the right of redemption where a final judgment of foreclosure has been entered. Since Shelton does not make this argument, the Court has found that it would be ““[in]adequate to justify the equitable relief” requested where Mr. Shelton was a party to the foreclosure action and received a copy of the final judgment of foreclosure which included the requisite paragraph regarding the right of redemption”.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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