Coronavirus: How will Covid-19 Impact your Florida Mortgage Payments? Learn More!

Florida Foreclosure Surplus Funds - Why an Evidentiary Hearing Might or Might Not Be Necessary.

When handling Florida Foreclosure Surplus Funds cases, sometimes it is necessary for there to be an Evidentiary Hearing in order to get the Court to release the funds to you. Most of our cases don’t have these, but some of them do and there are very specific reasons for having one. But first, what is an evidentiary hearing?

An evidentiary hearing is a hearing in front of the judge so he or she can determine specific questions of law or to determine the order of lienholders or a wide variety of questions the judge may have. Florida Foreclosure Surplus Funds cases aren’t always black and white, so to speak. For instance, if there is a question as to who heirs of a deceased party might be, the judge could hold an evidentiary hearing to determine whether it is necessary to do a Probate before being able to disburse the funds to you.

Next, the judge could believe there is some fraud going on in the case. I have had to deal with third-party surplus recovery companies who have found someone with the same last name as the deceased party, but otherwise not related to the deceased party and are making a claim on that unrelated person’s behalf. An evidentiary hearing is important to show the court of the fraud that might be going on. Additionally, an evidentiary hearing might be necessary if someone signs over their rights to a third-party surplus recovery company and now doesn’t want to deal with them. This evidentiary hearing may be necessary to point out flaws in the assignment agreement and allow for the client to be properly represented by a competent attorney. Perhaps this third-party surplus recovery company is hiding how much they are really being compensated or they just didn’t follow Florida Statute 45.033(3) regarding voluntary assignment of rights to the surplus funds. This is why it is important to have a competent Florida Foreclosure Surplus Funds Lawyer on your side. It is important to know the law and how it pertains to your specific case.

The next reason the judge may want an evidentiary hearing is to determine the order in which subordinate lienholders will be paid, or if they should be paid at all. Of course, a first mortgage holder is going to have a superior lien on the property, but it the case is brought by a homeowner’s association, the mortgage holder is not allowed to receive any surplus funds because a foreclosure by a homeowner’s association does not have any bearing on the mortgage as it attaches to the property. The mortgage holder can come back and file their own foreclosure case at a later date and make themselves whole, and they very often do so. However, if there are any second mortgage holders from a home equity line of credit, roofing (mechanic’s) liens, additional homeowner’s association liens if there is more than one association, IRS liens, county ordinance liens, etc., the court will want to have a hearing to determine the priority of these liens.

It is also important to understand that these different lienholders, according to Florida Statute 45.033(1), the must “timely” file a claim for the surplus funds. If their claim is not timely, even by one day, then they are not entitled to the surplus funds. An evidentiary hearing will be necessary to show the court whether or not the claim from a subordinate lienholder is timely. However, if there are no subordinate lienholders or if any potential ones have not filed a claim at all, then your attorney can argue in his initial pleading that you should be entitled to the Florida Foreclosure Surplus Funds without the need for an evidentiary hearing.

And although these are not the only reasons behind the necessity of an evidentiary hearing, these are probably the most problematic. If you or a deceased loved one have lost your property to a Foreclosure sale in the State of Florida, you could have Surplus Funds coming to you from that Foreclosure Sale. It is important to hire a competent attorney to represent you in order to make sure you get the maximum Florida Foreclosure Surplus Funds you have coming to you. Give me a call for a free consultation and evaluation of your case. I handle Foreclosure Surplus and Tax Deed Sale Surplus Funds in every county in the state of Florida, and I don’t get paid unless you do.

Categories: