Florida Foreclosure Surplus Funds - Elimination of the Surplus Trustee in Florida Statute 45.032

Haynes Law Group

There was a major change in Florida Foreclosure Surplus Statutes in 2019. This was the elimination of the Surplus Trustee. A Surplus Trustee was someone who was appointed by the Clerk of Court to find the property’s owner of record at the time of the foreclosure filing. This trustee originally had one year to find this property owner if no subordinate lienholders made a claim to the Florida Foreclosure Surplus Funds within 60 days from the foreclosure sale of the property.

Florida Statute 45.032 was changed in 2019 to both eliminate the Surplus Trustee and to give subordinate lienholders more time to make a claim. Subordinate lienholders now have up to one year from the foreclosure sale to make a claim for the Florida Foreclosure Surplus Funds as opposed to the original 60 days. The statute now eliminates the Surplus Trustee, which helps to remove another party that could take some of your Florida Foreclosure Surplus Funds. The prior language in the statutes that defined the role of the Surplus Trustee stated that the trustee could get a cost advance of 2 percent and later a service charge of 10 percent after the court disbursed the money to any prior owners. That is now an additional 12 percent that you get to keep since this statute was changed to remove the trustee. However, this means that you must do your due diligence to make sure you are entitled to those funds.

The main takeaway for you, the prior owner, is it takes out a potential additional party that can take some of your Florida Foreclosure Surplus Funds. The downside of this change in the law is that there is no longer someone appointed by the clerk of court that is actively looking for any potential owners of these surplus funds. This means that if you or a family member have lost a property due to foreclosure sale, you need to make sure you don’t ignore any letters from the Clerk of Court for your county because they will be sending paperwork that will let you know if there are any Florida Foreclosure Surplus Funds available to you. Since you have probably move and have a new mailing address, you might not receive these notices. You can also check the public records on your Clerk’s website and look at the foreclosure case. Any notices of disbursements or surplus funds will be listed in the docket for that original foreclosure case.

Something else to take note of is this change in the law also leaves a full year for a subordinate lienholder to make a claim to those same surplus funds. This one-year period doesn’t necessarily mean that you have to wait that full year to receive your Florida Foreclosure Surplus Funds though. Florida Statute 45.032(3)(a) states that 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 as long as there are no subordinate lienholders or if all of them have already made a claim and been paid, then you can petition the court to have the clerk of court release the remainder of your Florida Foreclosure Surplus Funds to you.

It is extremely important to hire a qualified Florida Foreclosure Surplus Attorney who knows and understands the way these statutes have changed over the last couple of years. I have been able to retrieve Surplus Funds for my clients before that year requirement is up simply because I understand these laws and how to argue them to the court.

If you believe you have Florida Foreclosure Surplus or Tax Deed Surplus funds coming to you from the sale of your property or that of a deceased loved one, please give me a call for a free consultation and evaluation of your claim. I handle Foreclosure Surplus and Tax Deed Surplus cases in every County in the State of Florida, and I don’t get paid unless you do.

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