I recently took on a consultation from a former Homeowner who was seeking information as to how surplus funds would be split from a recent Florida foreclosure auction of their marital home after recently being divorced. The answer to this question is quite simple — it all comes down to who received the subject property in the divorce or if both parties were to split the sale of the subject property 50/50. Florida Statute 45.032(2) states, “[t]here is established a rebuttable legal presumption that the owner of record 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.” The “owner of record” is defined by Fla. Statute 45.032(1)(a) as “the person or persons who appear to be owners of the property that is the subject of the foreclosure proceeding on the date of the filing of the lis pendens.” As such, it is crucial to determine who was awarded the subject property in the divorce or whether said property was to be sold and the proceeds split evenly between the parties when it comes to the recovery of the surplus funds for the former Homeowners. Additionally, it is also important to determine whether there is spousal or back-child support owed to either of the parties, as this can make a difference in who is disbursed, a portion, or even the entirety, of the surplus funds being held in the Court registry. I’ve had cases where I was able to successfully recover surplus funds for a divorced party despite not being awarded the subject property in their divorce because they were owed back-child support.
Moving on, I always recommend that the parties come to an agreement with each other prior to filing a claim for the surplus funds. The reason being is that it can expedite the process of recovering the surplus funds as long as there are no subordinate lienholders, with a valid claim. Otherwise, should the parties not be able to compromise, then it will delay the process, and the Judge will require what is known as an “Evidentiary Hearing” to determine the priority in which the funds are to be disbursed. If an Evidentiary Hearing is required, then we will be subject to the Judge’s availability for hearing such matters — depending on the Judge’s availability; this can be weeks or even months before the case is heard. After the hearing takes place, it can then take even more time for the Clerk to disburse said funds depending on how busy they are. Thus, why I always recommend that the parties come to an agreement prior to their filing of a claim. Lastly, if the parties have been contacted by a Third-Party Surplus Funds Recovery Company to assist them with the filing of their claim; then I strongly recommend that they ignore them and contact an experienced Florida Foreclosure Surplus Funds Recovery Attorney right away so they can gain a better understanding of their rights as they pertain to said surplus funds. Most importantly, I strongly recommend that the parties do not sign anything they may receive from one of these companies until they have spoken with an experienced attorney.
If you’re reading this and your marital home has recently been sold at a Florida foreclosure auction, and you are divorced, and would like to know whether there are surplus funds available for you to recover; then please give me a call and I will personally give you a free consultation. During our consultation, I will confirm whether there are surplus funds available to be recovered as well as answer any questions that you may have. If there are surplus funds to be recovered, then I will also provide you with a personalized strategy as to how we can assist you with the recovery of YOUR Florida foreclosure surplus funds.
At Haynes Law Group, P.A., we have experienced attorneys who are well-versed in the Florida statutes governing Florida homeowners’ claims to Florida foreclosure surplus funds and have helped to recover millions of dollars for former Florida homeowners. We represent former homeowners all over the state of Florida, no matter which county they are in, and will work tirelessly to ensure that you receive the Gold Standard of Legal Service.