I have people asking me all the time if they really need to hire a Florida Foreclosure Surplus or Florida Tax Deed Sal Surplus Attorney to handle their surplus case. They talk about the affidavits on their county website, or what the state statutes provide and want to know why they can’t just fill those out and request the funds themselves. They also ask which is better, hiring a qualified Lawyer, or one of those third-party recovery companies. What kind of issues could you run into if try to retrieve the Florida Foreclosure Surplus or Tax Deed Sale Surplus Funds yourself or hire someone other than a qualified Surplus Attorney?
For starters, it is important to know exactly where you stand after the sale of your property, or that of a deceased loved one. Are there any Surplus Funds available after this sale? Just because the Clerk of Court sent you a letter stating there are Surplus Funds doesn’t mean you can get all of them. If this was a Foreclosure sale from your mortgage, there could be subordinate lienholders that could make a claim to those funds. Those subordinate lienholders could include a lien from your, subordinate mortgage, money judgment, tax warrant from the IRS, homeowner’s association assessment lien, or construction lien. If any type of lien like that is attached to the property, those liens have priority as long as they make a “timely” claim. Depending on whether it is a Foreclosure Sale or a Tax Deed Sale the subordinate lienholder has a specific amount of time to make a claim. After a Foreclosure Sale, the subordinate lienholder has a year to make a timely claim for the Surplus Funds. After a Tax Deed Sale, a subordinate lienholder has only 120 days. But that isn’t all.
If your property is sold at a Foreclosure Sale from a Homeowner’s association or a Condo Owner’s association, your mortgage lender is NOT a subordinate lienholder. The mortgage lien remains on your property and anyone who purchases the property at the auctions takes the property subject to the mortgage. This means that as long as there are no lienholders that are subordinate to the association, the surplus goes to you, the former owner. Florida Statute 45.033 states, “There is established a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim.” No one else can claim those funds. Just you and a subordinate lienholder. The third-party purchaser is never allowed those funds.
If your property sells at a Tax Deed auction, the ability for a subordinate lienholder is a bit different. Florida Statute 197.522 states, “Except as specifically provided in this chapter, no right, interest, restriction, or other covenant shall survive the issuance of a tax deed, except that a lien of record held by a municipal or county governmental unit, special district, or community development district, when such lien is not satisfied as of the disbursement of proceeds of sale.” This means that any and all liens on the property except certain governmental liens are extinguished due to the Florida Tax Deed Foreclosure Sale. This may include liens from personal loans, credit card judgments, homeowner’s association (and Condo) assessment liens, child support liens, mechanics liens, and even mortgage liens. If you filled out the paperwork for those Florida Foreclosure Surplus or Tax Deed Surplus funds yourself, would you really be able to fight against any other claims to your Surplus Funds?
The last pitfall I want to discuss is hiring a third-party surplus recovery company. Many of these companies don’t have your best interest in mind and are only trying to make a buck for themselves. They charge outrageous fees disguised as “consultation fees” and they don’t always disclose how much they are charging you. When you sign up with one of them you are assigning your rights to those surplus funds over to them for a hefty price. They will then often hire an inexperienced attorney to file the proper paperwork. But that attorney isn’t working for you, he/she is working for the recovery company because you signed over your rights. Sometimes these companies disappear right after they retrieve the funds from the court, and you won’t see anything. It is a very scary prospect all around.
If you hire me and my firm, you only hire me and my firm. As a lawyer working in the State of Florida, I am bound by the ethical codes laid down by the Florida Bar and the Supreme Court of Florida. I am highly knowledgeable in the statutes and case law surrounding Florida Foreclosure Surplus and Tax Deed Surplus cases. Give me a call for a free consultation. I will fight to get you every bit of the funds you have coming to you. I handle Foreclosure Surplus and Tax Deed Surplus funds in every county in the State of Florida, and I don’t get paid unless you do.