Preview
Filing # 145156333 E-Filed 03/07/2022 09:28:02 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
PENTAGON FEDERAL CREDIT UNION;
Plaintiff,
VS. CASE NO.: 2020 CA 000862
ESTATE OF SAIMA M. KELLEY; ET AL;
Defendants.
/
DEFENDANT’S MOTION FOR 50% OF THE SURPLUS FUNDS
COMES NOW, the Defendant, JENNIFER DAY A/K/A JENNIFER KELLEY, by and
through undersigned counsel, and hereby files this Motion for 50% of the Surplus Funds, and states
as follows:
1 The Defendant, THE ESTATE OF SAIMA M. KELLEY, was the owner of the real
property prior to the foreclosure sale and as of the date of the filing of the lis pendens.
Saima M. Kelley had two children, Jennifer Day and Aaron Kelley. Saima Kelley had no
will.
Jennifer Day and Aaron Kelley are the only children and only heirs of Saima M. Kelley.
Thus, each child is entitled to 50% of the surplus funds.
Aaron Kelley has assigned away his interest to The Recovery Agents LLC.
Florida law provides that an involuntary transfer of interest in the foreclosure surplus funds
occurs upon the date of death from the record owner as grantor to the legal heirs as grantees
pursuant to Fla. Stat. 45.033(2)(b) immediately and involuntarily. The statute gives the
legal heirs as lineal descendants the sole right to claim the surplus funds after satisfaction
of subordinate lien holders who make a timely claim. The grantees take the place of the
deceased record owner and are legally entitled to claim the surplus funds at issue.
6. Therefore, no probate or court order is required to pass standing to the heirs in this case to
claim the surplus funds. Fla. Stat. § 45.033(2)(b) authorizes this court to disburse the
surplus funds without any further probate administration due to the involuntary transfer of
tights at the time of death.
This has been confirmed in several Pinellas County cases. Specifically, Pinellas County
case numbers: 18-001427-CO, 17-005193-CI, and 19-002284-CI.
Further, in the following cases of Bank of America v. Estate of Eddie James King, Broward
County CACE14021826, Deutsche Bank National Trust Co. v. Estate of Robert Powell,
Miami-Dade 2016-CA-664, Deutsche Bank v. Estate of Randy Green, Palm Beach 2015-
CA-7706, and Bank of America v. Estate of Vernon Frederick, Pasco 2014-CA-4269, the
Court held that an involuntary transfer of the property occurred under Florida Statute
45.033(2)(b), thus entitling the heirs to the surplus funds without requiring a probate occur.
A basic principle under the rules of civil procedure is that litigation must be brought to an
end. “The doctrine of decisional finality provides that there must be a ‘terminal point in
every proceeding ... at which the parties and the public may rely on a decision as being
final and dispositive of the rights and issues involved therein.’ ” Fla. Power Corp. v.
Garcia, 780 So.2d 34, 44 (Fla.2001) (citing Austin Tupler Trucking Inc. v. Hawkins, 377
So.2d 679, 681 (Fla.1979)).
10. There are no subordinate lien holders in this case, per the docket and through a public
record search.
11 Since there are no subordinate lien holders in this case, this Court is not required to wait
the year period to disburse the funds to the owner. If the owner of record makes a claim
within a year of the sale, and there are no subordinate lien holders, the Court shall disburse
the surplus funds.
12. Florida Statute 45.032 (3)(a) “If the owner of record claims the surplus during the year
period and there is no subordinate lienholder, the court shall order the clerk to deduct any
applicable service charges from the surplus and pay the remainder to the owner of record.”
(Emphasis added).
13. The Defendants hereby requests that 50% of the surplus funds be sent to:
HAYNES LAW GROUP, P.A.
407 Wekiva Springs Road, Suite 217
Longwood, FL 32779
WHEREFORE, the Defendant respectfully request this Honorable Court disburse 50% of
the foreclosure sale surplus proceeds to the Defendant, and any other relief this Court finds proper.
Dated this 7" day of March 2022.
Respectfully submitted,
/s/Benjamin C. Haynes, Esq.
Benjamin C. Haynes, Esq.
Florida bar No. 91139
Haynes Law Group, P.A.
407 Wekiva Springs Road, Suite 217
Longwood, FL 32779
Telephone: (407) 960-7377
Email: Ben@hayneslegalgroup.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed
with the Court and furnished, via electronic mail or first-class mail, this 7" day of March 2022, to:
ANDREW SCOLARO, ESQ.
Counsel for Plaintiff
Aldridge Pite, LLP
1615 South Congress Ave., Suite 200
Delray beach, FL 33445
Email: ServiceMail@aldridgepite.com
JAMES A. KLOHN, ESQ.
Counsel for The Recovery Agents, LLC
2401 E Atlantic Blvd., Suite 400
Pompano Beach, FL 33062
Email: klohnlaw@gmail.com
paralegal@therecoveryagents.com
AARON KELLEY
1050 Yarmouth Street
Port Charlotte, FL 33952
TIBERIU STEINBRECHER
Third Party Purchaser
917 Bayshore Drive
Englewood, FL 34223
/s/Benjamin C. Haynes, Esq.
Benjamin C. Haynes, Esq.
Preview
Filing # 145156333 E-Filed 03/07/2022 09:28:02 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA PENTAGON FEDERAL CREDIT UNION; Plaintiff, VS. CASE NO.: 2020 CA 000862 ESTATE OF SAIMA M. KELLEY; ET AL; Defendants. / DEFENDANT’S MOTION FOR 50% OF THE SURPLUS FUNDS COMES NOW, the Defendant, JENNIFER DAY A/K/A JENNIFER KELLEY, by and through undersigned counsel, and hereby files this Motion for 50% of the Surplus Funds, and states as follows: 1 The Defendant, THE ESTATE OF SAIMA M. KELLEY, was the owner of the real property prior to the foreclosure sale and as of the date of the filing of the lis pendens. Saima M. Kelley had two children, Jennifer Day and Aaron Kelley. Saima Kelley had no will. Jennifer Day and Aaron Kelley are the only children and only heirs of Saima M. Kelley. Thus, each child is entitled to 50% of the surplus funds. Aaron Kelley has assigned away his interest to The Recovery Agents LLC. Florida law provides that an involuntary transfer of interest in the foreclosure surplus funds occurs upon the date of death from the record owner as grantor to the legal heirs as grantees pursuant to Fla. Stat. 45.033(2)(b) immediately and involuntarily. The statute gives the legal heirs as lineal descendants the sole right to claim the surplus funds after satisfaction of subordinate lien holders who make a timely claim. The grantees take the place of the deceased record owner and are legally entitled to claim the surplus funds at issue. 6. Therefore, no probate or court order is required to pass standing to the heirs in this case to claim the surplus funds. Fla. Stat. § 45.033(2)(b) authorizes this court to disburse the surplus funds without any further probate administration due to the involuntary transfer of tights at the time of death. This has been confirmed in several Pinellas County cases. Specifically, Pinellas County case numbers: 18-001427-CO, 17-005193-CI, and 19-002284-CI. Further, in the following cases of Bank of America v. Estate of Eddie James King, Broward County CACE14021826, Deutsche Bank National Trust Co. v. Estate of Robert Powell, Miami-Dade 2016-CA-664, Deutsche Bank v. Estate of Randy Green, Palm Beach 2015- CA-7706, and Bank of America v. Estate of Vernon Frederick, Pasco 2014-CA-4269, the Court held that an involuntary transfer of the property occurred under Florida Statute 45.033(2)(b), thus entitling the heirs to the surplus funds without requiring a probate occur. A basic principle under the rules of civil procedure is that litigation must be brought to an end. “The doctrine of decisional finality provides that there must be a ‘terminal point in every proceeding ... at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues involved therein.’ ” Fla. Power Corp. v. Garcia, 780 So.2d 34, 44 (Fla.2001) (citing Austin Tupler Trucking Inc. v. Hawkins, 377 So.2d 679, 681 (Fla.1979)). 10. There are no subordinate lien holders in this case, per the docket and through a public record search. 11 Since there are no subordinate lien holders in this case, this Court is not required to wait the year period to disburse the funds to the owner. If the owner of record makes a claim within a year of the sale, and there are no subordinate lien holders, the Court shall disburse the surplus funds. 12. Florida Statute 45.032 (3)(a) “If the owner of record claims the surplus during the year period and there is no subordinate lienholder, the court shall order the clerk to deduct any applicable service charges from the surplus and pay the remainder to the owner of record.” (Emphasis added). 13. The Defendants hereby requests that 50% of the surplus funds be sent to: HAYNES LAW GROUP, P.A. 407 Wekiva Springs Road, Suite 217 Longwood, FL 32779 WHEREFORE, the Defendant respectfully request this Honorable Court disburse 50% of the foreclosure sale surplus proceeds to the Defendant, and any other relief this Court finds proper. Dated this 7" day of March 2022. Respectfully submitted, /s/Benjamin C. Haynes, Esq. Benjamin C. Haynes, Esq. Florida bar No. 91139 Haynes Law Group, P.A. 407 Wekiva Springs Road, Suite 217 Longwood, FL 32779 Telephone: (407) 960-7377 Email: Ben@hayneslegalgroup.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Court and furnished, via electronic mail or first-class mail, this 7" day of March 2022, to: ANDREW SCOLARO, ESQ. Counsel for Plaintiff Aldridge Pite, LLP 1615 South Congress Ave., Suite 200 Delray beach, FL 33445 Email: ServiceMail@aldridgepite.com JAMES A. KLOHN, ESQ. Counsel for The Recovery Agents, LLC 2401 E Atlantic Blvd., Suite 400 Pompano Beach, FL 33062 Email: klohnlaw@gmail.com paralegal@therecoveryagents.com AARON KELLEY 1050 Yarmouth Street Port Charlotte, FL 33952 TIBERIU STEINBRECHER Third Party Purchaser 917 Bayshore Drive Englewood, FL 34223 /s/Benjamin C. Haynes, Esq. Benjamin C. Haynes, Esq.