Florida Foreclosure Sale and Tax Deed Sale Surplus Funds – Who can Intervene in a Surplus Funds Case and Why?

Haynes Law Group

Occasionally I am hired onto a Florida Foreclosure Sale Surplus Funds Case where the client isn’t initially known by the court. This sometimes happens when the family members of a deceased former owner suddenly find out that they might be entitled to some or all of those surplus funds. This person(s) may have not been named in the original foreclosure case and in order to claim the surplus funds, a motion to intervene has to be filed. Additionally, a person or entity who has a lien on the property may need to intervene (under specific circumstances) in the case in order to secure the surplus funds to pay off that lien. Lastly, the Clerk of Court can intervene in a Florida Tax Deed Sale Surplus case in order to ensure the proper parties are being given the surplus funds.

Under Florida Rules of Civil Procedure 1.230, “anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” According to this rule, anyone who claims to have an interest in the case can intervene. This means that any potential heirs, spouses, lienholders, etc. who were not originally named in the case can intervene so they can show the court what their relationship to the deceased party is/was and that they may be eligible for the Florida Foreclosure Sale Surplus Funds.

I should also point out that many third-party purchasers will try to intervene in the surplus case falsely believing they have some right to the funds. While they may have some right based on the rules of procedure to intervene, they do NOT have any right to the Florida Foreclosure Sale Surplus Funds. Based on Florida Statute 45.033(1), “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.” A third-party purchaser is neither the owner of record when the case was first started, nor are they a subordinate lienholder. It won’t stop them from intervening in the case, but they basically only have the right to observe at that point, unless they need to do something else like file a writ of possession and eviction or something like that.

Additionally, if you have signed over your rights to the Florida Foreclosure Sale Surplus Funds to a third-party surplus recovery company, it must file a motion to intervene along with their motion for surplus funds. They must file the motion to intervene because they aren’t you. They have to tell the court that you assigned your rights to them and ask for the funds on their behalf, not yours. If you hire a qualified Foreclosure Surplus Funds lawyer, like me, I will file my motions on your behalf. You simply hire me; you don’t assign your rights to me. This means that unlike many of these shady surplus recovery companies, I won’t just up and disappear. I work for you.

Lastly, a subordinate lienholder may need to file a motion to intervene in the case in order to preserve their right to the Florida Foreclosure Sale Surplus Funds (if any). However, this subordinate lienholder must file their motion to intervene prior to the sale of the property. There is a good deal of caselaw out there that states a subordinate lienholder must preserve its rights before the conclusion of the case. Even though there are sometimes some hearings after the sale of the property, the sale itself is the conclusion of the foreclosure case. If their motion to intervene isn’t filed prior to the sale, they have lost their right to intervene.

Moving over to Florida Tax Deed Sale Surplus Funds, it can be quite common for the Clerk of Court for your County to intervene in your case if they feel that someone is either not the correct person that is due the surplus funds, or if there are additional people who may be eligible to claim them. Florida Statute 197.582 states the Clerk of Court is required to disburse surplus funds to the property owner after the sale if there are no other issues. The Clerk will often have their attorney(s) research the property and find potential owners, prior to agreeing to disburse the funds. Sometimes due to this research, people who didn’t know anything about the sale of the property, found out they could be due Florida Tax Deed Sale Surplus Funds. The clerk will then send out a notice of Tax Deed Sale Surplus to anyone they have found, who could be due these funds. In this instance, you won’t need to file a motion to intervene, because the Clerk of Court has already intervened on your behalf. You just need to follow the proper procedure to get your funds. The best way to do this is to hire a qualified Tax Deed Sale Recovery Lawyer, like me, to help you with retrieving your funds.

If you or a deceased family member have lost your home to foreclosure or tax deed sale, please give me a call for a free consultation. I will discuss with you whether a motion to intervene needs to be filed and the best method of making sure you get the most of your Florida Foreclosure Sale Surplus or Florida Tax Deed Sale Surplus Funds. I handle Foreclosure Sale Surplus and Tax Deed Sale Surplus Funds in every County in The State of Florida, and I don’t get paid unless you do.

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