When you have lost your property to a foreclosure sale, there may be Florida Foreclosure Sale Surplus Funds available. Florida Statute §45.033(1) states, “There is established a rebuttable presumption that the owner of record of real property on the date of filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim.” But who is the “owner of record”? Florida Statute §45.032(1)(a) defines “Owner of Record” 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. In determining an owner of record, a person need not perform a title search and examination but may rely on the plaintiff’s allegation of ownership in the complaint when determining the owner of record.”
What exactly does that mean? A “lis pendens” is the beginning of the court case against you. That means the owner of record is the person who owned the property on the date the foreclosure case was originally filed. This does NOT mean the person who is the current owner of record. I can’t tell you how many times I have had to refute a new owner’s claim for surplus funds because they think that since they are the new owner, that they are entitled to the Florida Foreclosure Sale Surplus Funds. That is absolutely not the case. The owner of record that is due to receive the surplus funds, is the person who owned the property when the foreclosure case was started, not ended.
What if you are an heir to a deceased party who was the owner of record when the case was started? Are you entitled to the surplus funds? Maybe. Florida Statute §45.033(2)(b) states, “An involuntary or assignment may be as a result of inheritance.” An involuntary transfer would be if the original owner has died and there are heirs. The heirs would be the presumptive owners of the property by rights of intestate succession (meaning they died without a will). This means that if a close relative, like a parent dies before being able to collect the Florida Foreclosure Sale Surplus Funds, you may be eligible to receive them as an heir to your parent(s) without necessarily having to go through probate. However, sometimes a probate is necessary if the list of heirs is complicated, or if there is a will designating who is to receive the assets, but often it is not necessary if we can show the court conclusively who the heirs are.
This term, “owner of record” is very specific. I have had to fight against new owners that when they see this term, they believe they have the right to (for lack of a better term), get their money back. This is far from the truth. A new owner might be the owner of record now, but the statute is very specific and states they the owner of record is the person who owned the property when the foreclosure started, not when it ended. I take calls on an almost daily basis from these purchasers who want to try to get the Florida Foreclosure Surplus Funds from a property they just bought at auction. The courts have been very clear on this and have stated, “Neither the statutes nor the case law governing distribution of surplus foreclosure sale proceeds provides a mechanism authorizing a third-party purchaser to obtain the surplus.” Pineda v. Wells Fargo Bank, N.A. 143 So3d 1008.
Generally, the owner or owners of record can be determined by looking at the complaint or lis pendens to the case. These people will be listed, along with subordinate lienholder as defendants to the case. Sometimes you can just look at who was on the deed to the property when the case was first started. Either way, a purchaser at auction is NOT the owner of record when the lis pendens was filed, and they are NOT a subordinate lienholder. They have zero rights to the Florida Foreclosure Sale Surplus Funds. Those funds belong to you, the owner when the foreclosure case first started.
If you were the Owner of Record, or if you are an heir to a deceased family member who was the Owner of Record to a property and you believe you are owed surplus funds from either a Tax Deed sale or a Foreclosure sale, please give me a call for a free consultation. I can help you to make sure you get the most out of the surplus funds you may have coming to you. I handle Tax Deed Sale and Foreclosure Sale Surplus cases in every county in the State of Florida, and I don’t get paid unless you do.