I often talk here about when someone has lost their home, or a deceased family member’s home has been lost to foreclosure sale or tax deed sale and there are surplus funds remaining. But how long does it take to get those funds back to the former owner of the property or to the deceased owner’s family members? The typical lawyer answer is “it depends”. There are many factors involved in how long it takes to get those funds back to the proper parties and much of it can’t be controlled.
Florida Statute 45.033(1) 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.” It also states, “A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove entitlement to the surplus funds pursuant to this section.” The first part says that you get the funds, after subordinate lienholder who have “timely filed a claim.” In this instance, “timely” means subordinate lienholders have a year to make a claim based on recent changes to the statute. On rare occasion, a court will force former owners or their heirs to wait to see if subordinate lienholders named in the case will make a claim. This means that if they haven’t made a claim yet, the court will want to wait a full year for them to do so. But like I said, this is rare. If the named subordinate lienholders did not file anything in the foreclosure case and were defaulted, I have successfully argued that they have waived their rights to claim the surplus. This could speed up the process.
The next part of the statute states that the owner of record must prove entitlement to the surplus funds. Depending on the county, this could take some time. If you are the former owner, often all the court needs is the motion for surplus funds filed by me to have the funds released. However, some counties will require an affidavit of claim for surplus to be filed along with the motion. Additionally, if there are multiple parties who are claiming the Florida Foreclosure Surplus Funds, the court may set an evidentiary hearing to decide on priority or whether all claimants are proper to the case. Then, even after everything has been decided and the court grants the funds to be released, they don’t just write you a check. The Clerk of Court has to process the request from the court and will then release the check. This can take a few days to a few weeks.
When it comes to Florida Tax Deed Sale Surplus funds, if you were the former owner of the property, it can be relatively easy to claim the surplus. As a part of Florida Statute 197.582, the Clerk of Court is required to disburse surplus funds to the property owner after the sale if there are no other issues. This means that if you were the former owner of the property, the Florida Tax Deed Sale Surplus Funds will be distributed to you after any claiming lienholders and after you have made a claim. However, the Clerk of court can intervene in the case if they see other potential owners, the original owner is deceased, or some liens are not extinguished by the sale. When the Clerk of Court intervenes, then an evidentiary hearing might need to be held to determine who should get the funds. Or the Clerk could require the claiming parties file probate in the case so the court can determine ownership of the property if the original owner is deceased.
Probate, either summary administration or formal administration, can take a few months or longer in order to determine the proper ownership, especially if there are a large number of heirs and other property (tangible or intangible) that needs to be probated. Once the property has gone through probate, then the order from the court can then be turned over to the Clerk’s attorneys for review and they will direct the Clerk of Court to release the Florida Tax Deed Sale Surplus Funds. Once the Clerk is directed to release the funds, it can take a few days to a few weeks for them to send out the funds.
Bottom line is that each and every case is different and there is no telling when or how fast the Florida Foreclosure Sale Surplus Funds or Florida Tax Deed Sale Surplus Funds can be released to you or the heirs of a deceased former owner. However, hiring an experienced and qualified Florida Foreclosure Sale and Tax Deed Sale Surplus Attorney will greatly increase your chances of both getting your funds quickly and getting the maximum amount you have coming to you.
If you or a deceased family member has lost your home to foreclosure or tax deed sale, please give me a call for a free consultation. I will discuss with you the best method of making sure you get the most of your Florida Foreclosure Sale Surplus or Florida Tax Deed Sale Surplus Funds and I can go over approximately how long it may take to get them. 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.