Under Florida Statute § 45.032, if a home in foreclosure sells at the foreclosure auction for more than the judgment amount, there should be surplus funds held by the Clerk of Court.
So when this happens, who is entitled to that money? The answer: junior lienholders who file a claim for the surplus within 60 calendar days and the owner of the property at the time the lis pendens is filed, which is usually filed at the same time as the foreclosure case itself.
Who has priority to those surplus funds? If a junior lienholder has a valid enforceable junior lien and they file their claim timely, then the junior lienholder would have priority with the homeowner being entitled to the remainder of the funds, if any funds are left.
The 60-day deadline for junior lien holders to file a claim for surplus begins to run from the date the Certificate of Disbursements is filed. Bank of New York Mellon v Glenville, 252 So. 3d 1120 (Fla. 2018). The Certificate of Disbursements is a document that confirms whether the Clerk of Court is retaining any surplus funds and, if so, how much.
If the junior lienholder does not file its claim within 60 days, they are out and any claim after the 60-day claim period lapses would be time-barred.
The 60-day deadline does not apply to homeowners filing surplus claims but it is always prudent to file your claim as soon as possible.
If you have been foreclosed on, remember to check with the Clerk of the Court about 10 days after the sale to see if there is any surplus being held by the Clerk. If there is, you will want to file a surplus claim and coordinate a hearing on the claim.
Of course, it is always prudent to retain competent legal counsel for these claims. Many attorneys accept these cases on a contingency-fee basis, meaning that the attorney only gets paid if they obtain the surplus successfully. The attorney’s fees would then come out of the recovery.
If you have been foreclosed on, double check on the surplus. Why leave money on the table?
Best Regards,
Ryan Torrens
Consumer litigation attorney
