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Filing # 194510511 E-Filed 03/21/2024 10:41:37 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA
CIVIL ACTION
NEWREZ LLC D/B/A SHELLPOINT
MORTGAGE SERVICING,
Plaintiff,
CASE NO. 22-CA-001090
vs.
LATISHA T. BRAXTON, et al.,
Defendants,
/
MOTION FOR SURPLUS FUNDS FROM THE COURT REGISTRY
TO CALOOSA LAKES HOMEOWNERS ASSOCIATION, INC
COMES NOW the Defendant, CALOOSA LAKES HOMEOWNERS' ASSOCIATION,
INC. (“Association”), by and through the undersigned counsel, files this Motion to for Surplus
Funds from the Court Registry and in support thereof states as follows:
1. On March 13, 2024, a foreclosure sale was held in this instant action. A third party
purchaser, Dirty Properties LLC, was the winning bidder of the subject property at the foreclosure
sale. The full bid amount was placed in the Court Registry totaling $285,500.00.
2. Plaintiff, NEWREZ LLC D/B/A SHELLPOINT MORTGAGE SERVICING
("Plaintiff') is due a total of $262,106.29, plus post judgment fees pursuant to the Final Judgment
of Foreclosure entered February 6, 2023, $5,499.00 for clerk fees, and $2,562.70 for doc stamp
fees, leaving $33,126.58 in the Court Registry as surplus funds.
3. The subject property more commonly known as 19413 Mossy Ledge Terrace,
Lehigh Acres, FL 33936 and more specifically described as:
Lot 113, CALOOSA LAKES PHASE 1, according to the Map or Plat thereof,
recorded in Instrument # 2006-358513, Public Records of Lee County, Florida.
(“Property”)
41768653_1
eFiled Lee County Clerk of Courts Page 1
is within the Caloosa Lakes subdivision and subject to the Declaration of Covenants, Conditions,
and Restrictions for Caloosa Lakes, originally recorded in Official Records Instrument #
2006000358515 of the Public Records of Lee County, (hereinafter the “Declaration”), as amended
from time to time.
4. The Association is a junior lien to Plaintiff as the Association's Declaration creates
a subordinate interest in the Property in which it encumbered.
5. "Any surplus remaining after a foreclosure sale should be paid to the junior
lienholders in accordance with the priority of their liens on the property; only after such liens have
been satisfied may any surplus be disbursed to the owner of the equity of redemption." Garcia v.
Stewart, 906 So. 2d 1117, 1120 (Fla. 4th DCA 2005).
6. Only after the satisfaction of the Association's lien may any other party recover
from the surplus funds.
7. The Declaration is a covenant running with the land, thus constituting an
"encumbrance or interest" in the property for purposes of section 48.23(1)(d), Florida Statutes
(2019). See Bessemer v. Gersten, 381 So.2d 1344 (Fla. 1980) (holding that a valid contractual lien
is created when a property is purchased subject to declarations of restrictions which manifest an
intent to let the property stand for security for the obligations imposed in the restrictions). See
Jallali v. Knightsbridge Vill. Homeowners Ass'n, Inc., 211 So. 3d 216, 220 (Fla. 4th DCA 2017).
A Declaration that specifies that it is creating a continuing lien that relates back puts prospective
mortgages and purchasers on notice of the superiority of the lien. See Fed Nat. Mortg. Ass'n v.
McKesson, 639 So. 2d 78, 79 (Fla. 4th DCA 1994).
41768653_1
eFiled Lee County Clerk of Courts Page 2
8. Here, the Association's contractual and continuing lien was created on September
15, 2006, by the recordation of the Declaration, and any other interest in the Property is subordinate
to the lien established by the Declaration, aside from Plaintiff, as the first mortgagee.
9. Pursuant to 720.3085, Florida Statutes (2023), "Except as otherwise set forth in this
section, the lien is effective from and shall relate back to the date on which the original declaration
of the community was recorded. ..." The Association's Declaration and Bylaws provide that the
Association's continuing lien is the next priority after the first mortgagee.
10. On September 15, 2006, the Declaration was recorded for the Association,
therefore, the lien created by the Declaration dates back to September 15, 2006.
11. In determining the priority of a lien, the doctrine of "first in time is first in right"
applies. Fed. Nat. Mortg. Ass'n v. McKesson, 639 So. 2d 78 (Fla. 4th DCA 1994). Under this
doctrine, the first party to record a lien has the superior interest in the property. The Association's
lien dates back to September 15, 2006, and therefore, the Association's lien is the first in time and
is the first in right, with the exception of Plaintiff.
12. As such, the Association is entitled to the surplus funds.
13. The Association is owed a total of $10,238.30, comprised of $4,839.64 for past due
assessments from November 1, 2019 through March 20, 2024, $550.00 in violation fines,
$1,325.00 for late fees, $1,673.12 for interest through March 20, 2024, $70.00 in Administrative
Fees, collection costs of $19.54, in addition to attorney’s fees in the amount of $1,761.00.
41768653_1
eFiled Lee County Clerk of Courts Page 3
WHEREFORE, the Defendant, CALOOSA LAKES HOMEOWNERS ASSOCIATION,
INC., respectfully requests this Court for the entry of an Order disbursing $10,038.30 of the surplus
funds to Defendant, Caloosa Lakes Homeowners Association, Inc. in the amounts referenced
above, and for such other and further relief as this Court deems just and proper.
Respectfully submitted,
/s/ Tiffany M. Love_________
Tiffany M. Love Esquire
Florida Bar No.: 92884
Tiffany.Love@arlaw.com
ADAMS AND REESE LLP
100 N. Tampa Street, Suite 4000
Tampa, FL 33602
Telephone: (813) 227-5541
Facsimile: (813) 227-5641
Attorneys for Caloosa Lakes Homeowners
Association, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by
electronic service via the Florida Courts E-Filing Portal to: The Estate of David M. Bowering c/o
Richard M Georges, Esq., 3656 First Avenue North, Saint Petersburg, FL 33714; Assignee of
Defendant, David Bowering, deceased, The Recovery Agents, LLC, 2401 E. Atlantic Blvd, Suite
400, Pompono Beach, FL 33062; SMS Financial NCU, c/o Richard B. Strofer, Esq., 101 N.E. 3rd
Avenue, Suite 1800, Fort Lauderdale, FL 33301; and via U.S. Mail to Kevin Dec LLC, 18220
Clear Lake Drive, Lutz, FL 33548; this _____
21st day of March, 2024.
/s/ Tiffany M. Love
ATTORNEY
41768653_1
eFiled Lee County Clerk of Courts Page 4
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA
CIVIL ACTION
NEWREZ LLC D/B/A SHELLPOINT
MORTGAGE SERVICING,
Plaintiff,
CASE NO. 22-CA-001090
vs.
LATISHA T. BRAXTON, et al.,
Defendants,
/
ORDER DIRECTING CLERK TO DISBURSE SURPLUS FUNDS
THIS CAUSE having come before this Court, and this Court having heard argument of
counsel, reviewed the court file and being otherwise duly advised in the premises, it is
ORDERED AND ADJUDGED that:
1. Defendant, CALOOSA LAKES HOMEOWNERS ASSOCIATION, INC.’s Motion
to Disburse Surplus Funds is GRANTED.
2. The Court makes the following findings and authorizes the Clerk of the Court to
disburse the surplus proceeds arising from the foreclosure sale in this matter as follows:
a. All parties were provided with notice of the surplus funds pursuant to the
Certificate of Disbursements issued by the Clerk on
_________________________.
b. The Clerk of Court is hereby directed to disburse $10,038.30 in surplus
funds to Defendant, CALOOSA LAKES HOMEOWNERS
ASSOCIATION, INC. c/o Adams and Reese LLP, Attn: Tiffany M. Love,
Esquire, 100 N Tampa St., Tampa, FL 33602, within ten (10) days of the
date of this Order.
DONE AND ORDERED in Chambers, Lee County, Florida, on this ______ day of
__________, 2024.
Circuit Court Judge
Copies to:
41768653_1
eFiled Lee County Clerk of Courts Page 5
TAMPA POSTAL DISTRICT FEDERAL CREDIT UNION
C/O PRESIDENT, VICE PRESIDENT OR ANY OTHER OFFICER AUTHORIZED TO
ACCEPT SERVICE
15916 NORTH FLORIDA AVENUE
LUTZ, FL 33549
HOUSING AND URBAN DEVELOPMENT
C/O U.S. ATTORNEY MIDDLE DISTRICT OF FLORIDA
400 N. TAMPA STREET, SUITE 3200
TAMPA, FL 33602
TORRANCE COOK
823 NORTH GAP LOOP
HUNTSVILLE, AL 36110
THE RECOVERY AGENTS, LLC
ASHTON ROOKS, ESQ.
ATTORNEY FOR THE RECOVERY AGENTS, LLC
2401 E ATLANTIC BLVD, STE 400
POMPANO BEACH, FL 33062
PRIMARY EMAIL: ASHTON@THERECOVERYAGENTS.COM
SECONDARY EMAIL: PARALEGAL@THERECOVERYAGENTS.COM
41768653_1
eFiled Lee County Clerk of Courts Page 6
LATIESHA T. BRAXTON
19413 MOSSY LEDGE TER
LEHIGH ACRES, FL 33936
TORRANCE COOK
19413 MOSSY LEDGE TER
LEHIGH ACRES, FL 33936
KIM STEVENS, ESQ. (Via E-Mail)
ROBERTSON, ANSCHUTZ, SCHNEID, CRANE
& PARTNERS, PLLC
6409 Congress Ave., Suite 100
BOCA RATON, FL 33487
Email: FLmail@raslg.com
Attorney for Plaintiff
41768653_1
eFiled Lee County Clerk of Courts Page 7
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Filing # 194510511 E-Filed 03/21/2024 10:41:37 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL ACTION NEWREZ LLC D/B/A SHELLPOINT MORTGAGE SERVICING, Plaintiff, CASE NO. 22-CA-001090 vs. LATISHA T. BRAXTON, et al., Defendants, / MOTION FOR SURPLUS FUNDS FROM THE COURT REGISTRY TO CALOOSA LAKES HOMEOWNERS ASSOCIATION, INC COMES NOW the Defendant, CALOOSA LAKES HOMEOWNERS' ASSOCIATION, INC. (“Association”), by and through the undersigned counsel, files this Motion to for Surplus Funds from the Court Registry and in support thereof states as follows: 1. On March 13, 2024, a foreclosure sale was held in this instant action. A third party purchaser, Dirty Properties LLC, was the winning bidder of the subject property at the foreclosure sale. The full bid amount was placed in the Court Registry totaling $285,500.00. 2. Plaintiff, NEWREZ LLC D/B/A SHELLPOINT MORTGAGE SERVICING ("Plaintiff') is due a total of $262,106.29, plus post judgment fees pursuant to the Final Judgment of Foreclosure entered February 6, 2023, $5,499.00 for clerk fees, and $2,562.70 for doc stamp fees, leaving $33,126.58 in the Court Registry as surplus funds. 3. The subject property more commonly known as 19413 Mossy Ledge Terrace, Lehigh Acres, FL 33936 and more specifically described as: Lot 113, CALOOSA LAKES PHASE 1, according to the Map or Plat thereof, recorded in Instrument # 2006-358513, Public Records of Lee County, Florida. (“Property”) 41768653_1 eFiled Lee County Clerk of Courts Page 1 is within the Caloosa Lakes subdivision and subject to the Declaration of Covenants, Conditions, and Restrictions for Caloosa Lakes, originally recorded in Official Records Instrument # 2006000358515 of the Public Records of Lee County, (hereinafter the “Declaration”), as amended from time to time. 4. The Association is a junior lien to Plaintiff as the Association's Declaration creates a subordinate interest in the Property in which it encumbered. 5. "Any surplus remaining after a foreclosure sale should be paid to the junior lienholders in accordance with the priority of their liens on the property; only after such liens have been satisfied may any surplus be disbursed to the owner of the equity of redemption." Garcia v. Stewart, 906 So. 2d 1117, 1120 (Fla. 4th DCA 2005). 6. Only after the satisfaction of the Association's lien may any other party recover from the surplus funds. 7. The Declaration is a covenant running with the land, thus constituting an "encumbrance or interest" in the property for purposes of section 48.23(1)(d), Florida Statutes (2019). See Bessemer v. Gersten, 381 So.2d 1344 (Fla. 1980) (holding that a valid contractual lien is created when a property is purchased subject to declarations of restrictions which manifest an intent to let the property stand for security for the obligations imposed in the restrictions). See Jallali v. Knightsbridge Vill. Homeowners Ass'n, Inc., 211 So. 3d 216, 220 (Fla. 4th DCA 2017). A Declaration that specifies that it is creating a continuing lien that relates back puts prospective mortgages and purchasers on notice of the superiority of the lien. See Fed Nat. Mortg. Ass'n v. McKesson, 639 So. 2d 78, 79 (Fla. 4th DCA 1994). 41768653_1 eFiled Lee County Clerk of Courts Page 2 8. Here, the Association's contractual and continuing lien was created on September 15, 2006, by the recordation of the Declaration, and any other interest in the Property is subordinate to the lien established by the Declaration, aside from Plaintiff, as the first mortgagee. 9. Pursuant to 720.3085, Florida Statutes (2023), "Except as otherwise set forth in this section, the lien is effective from and shall relate back to the date on which the original declaration of the community was recorded. ..." The Association's Declaration and Bylaws provide that the Association's continuing lien is the next priority after the first mortgagee. 10. On September 15, 2006, the Declaration was recorded for the Association, therefore, the lien created by the Declaration dates back to September 15, 2006. 11. In determining the priority of a lien, the doctrine of "first in time is first in right" applies. Fed. Nat. Mortg. Ass'n v. McKesson, 639 So. 2d 78 (Fla. 4th DCA 1994). Under this doctrine, the first party to record a lien has the superior interest in the property. The Association's lien dates back to September 15, 2006, and therefore, the Association's lien is the first in time and is the first in right, with the exception of Plaintiff. 12. As such, the Association is entitled to the surplus funds. 13. The Association is owed a total of $10,238.30, comprised of $4,839.64 for past due assessments from November 1, 2019 through March 20, 2024, $550.00 in violation fines, $1,325.00 for late fees, $1,673.12 for interest through March 20, 2024, $70.00 in Administrative Fees, collection costs of $19.54, in addition to attorney’s fees in the amount of $1,761.00. 41768653_1 eFiled Lee County Clerk of Courts Page 3 WHEREFORE, the Defendant, CALOOSA LAKES HOMEOWNERS ASSOCIATION, INC., respectfully requests this Court for the entry of an Order disbursing $10,038.30 of the surplus funds to Defendant, Caloosa Lakes Homeowners Association, Inc. in the amounts referenced above, and for such other and further relief as this Court deems just and proper. Respectfully submitted, /s/ Tiffany M. Love_________ Tiffany M. Love Esquire Florida Bar No.: 92884 Tiffany.Love@arlaw.com ADAMS AND REESE LLP 100 N. Tampa Street, Suite 4000 Tampa, FL 33602 Telephone: (813) 227-5541 Facsimile: (813) 227-5641 Attorneys for Caloosa Lakes Homeowners Association, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by electronic service via the Florida Courts E-Filing Portal to: The Estate of David M. Bowering c/o Richard M Georges, Esq., 3656 First Avenue North, Saint Petersburg, FL 33714; Assignee of Defendant, David Bowering, deceased, The Recovery Agents, LLC, 2401 E. Atlantic Blvd, Suite 400, Pompono Beach, FL 33062; SMS Financial NCU, c/o Richard B. Strofer, Esq., 101 N.E. 3rd Avenue, Suite 1800, Fort Lauderdale, FL 33301; and via U.S. Mail to Kevin Dec LLC, 18220 Clear Lake Drive, Lutz, FL 33548; this _____ 21st day of March, 2024. /s/ Tiffany M. Love ATTORNEY 41768653_1 eFiled Lee County Clerk of Courts Page 4 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL ACTION NEWREZ LLC D/B/A SHELLPOINT MORTGAGE SERVICING, Plaintiff, CASE NO. 22-CA-001090 vs. LATISHA T. BRAXTON, et al., Defendants, / ORDER DIRECTING CLERK TO DISBURSE SURPLUS FUNDS THIS CAUSE having come before this Court, and this Court having heard argument of counsel, reviewed the court file and being otherwise duly advised in the premises, it is ORDERED AND ADJUDGED that: 1. Defendant, CALOOSA LAKES HOMEOWNERS ASSOCIATION, INC.’s Motion to Disburse Surplus Funds is GRANTED. 2. The Court makes the following findings and authorizes the Clerk of the Court to disburse the surplus proceeds arising from the foreclosure sale in this matter as follows: a. All parties were provided with notice of the surplus funds pursuant to the Certificate of Disbursements issued by the Clerk on _________________________. b. The Clerk of Court is hereby directed to disburse $10,038.30 in surplus funds to Defendant, CALOOSA LAKES HOMEOWNERS ASSOCIATION, INC. c/o Adams and Reese LLP, Attn: Tiffany M. Love, Esquire, 100 N Tampa St., Tampa, FL 33602, within ten (10) days of the date of this Order. DONE AND ORDERED in Chambers, Lee County, Florida, on this ______ day of __________, 2024. Circuit Court Judge Copies to: 41768653_1 eFiled Lee County Clerk of Courts Page 5 TAMPA POSTAL DISTRICT FEDERAL CREDIT UNION C/O PRESIDENT, VICE PRESIDENT OR ANY OTHER OFFICER AUTHORIZED TO ACCEPT SERVICE 15916 NORTH FLORIDA AVENUE LUTZ, FL 33549 HOUSING AND URBAN DEVELOPMENT C/O U.S. ATTORNEY MIDDLE DISTRICT OF FLORIDA 400 N. TAMPA STREET, SUITE 3200 TAMPA, FL 33602 TORRANCE COOK 823 NORTH GAP LOOP HUNTSVILLE, AL 36110 THE RECOVERY AGENTS, LLC ASHTON ROOKS, ESQ. ATTORNEY FOR THE RECOVERY AGENTS, LLC 2401 E ATLANTIC BLVD, STE 400 POMPANO BEACH, FL 33062 PRIMARY EMAIL: ASHTON@THERECOVERYAGENTS.COM SECONDARY EMAIL: PARALEGAL@THERECOVERYAGENTS.COM 41768653_1 eFiled Lee County Clerk of Courts Page 6 LATIESHA T. BRAXTON 19413 MOSSY LEDGE TER LEHIGH ACRES, FL 33936 TORRANCE COOK 19413 MOSSY LEDGE TER LEHIGH ACRES, FL 33936 KIM STEVENS, ESQ. (Via E-Mail) ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC 6409 Congress Ave., Suite 100 BOCA RATON, FL 33487 Email: FLmail@raslg.com Attorney for Plaintiff 41768653_1 eFiled Lee County Clerk of Courts Page 7