Many of our Foreclosure Surplus cases can take a little time to get completely settled due to the number of Subordinate (junior) lienholders. Sometimes if there are no subordinate lienholders, we can get the surplus funds rather quickly. What makes one case more difficult than the other?
Currently, when there is a subordinate lienholder, there is a waiting period before the surplus funds can be released. Florida Statute 45.032(3)(c) states in part, “One year after the sale, any surplus remaining with the clerk of the court that has not been disbursed as provided herein is presumed unclaimed… remit the unclaimed property to the department if directed by a court order, to another entity if directed by the court order, or, if not directed by the court order, to the owner of record.” This means there is potentially a one year waiting period for a subordinate lienholder to file a claim for the surplus funds.
However, just because there is a year waiting period for subordinate lienholders to make a claim, doesn’t necessarily mean that you will have to wait a year. If all of the subordinate lienholders have already come forward and made their claim, any remaining surplus funds should be released to the homeowner right away. The one year waiting period simply gives these lienholders extra time to gather their case for the surplus funds. Most of them will want to get their money sooner rather than later. Once all of them have made a claim, we can request the remaining funds to be released immediately.
This is considerably different when there are no subordinate lienholders. Florida Statute 45.032(3)(a) states, “If the owner of record claims the surplus before the date that the clerk reports it as unclaimed 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.” This means that if there are no subordinate lienholder that have been named in the case and through a diligent search of the county records no subordinate lienholders have been found, then the court should be able to immediately release the funds.
However, this doesn’t mean that a court will just cut you a check. The person who is to receive the funds must file a motion to release the funds and state specifically why those funds should be released. Here at the Haynes Law Group, P.A. we can handle both extremes of the scenarios above and any other scenarios in between.
If you think you may be entitled to foreclosure surplus funds in Florida, and you are unsure about whether there are subordinate lienholders, please call my firm and I will personally give you a free consultation. I handle foreclosure surplus cases in every county in Florida. And I don’t get paid unless you do.