How to Claim Foreclosure Surplus Funds in Florida

Florida has two separate surplus systems, and the reason the home was sold decides which one applies. A mortgage foreclosure goes through the court, and its surplus rules are in chapter 45 of the Florida Statutes. A tax deed sale follows unpaid property taxes, and its surplus is governed by section 197.582. In both, the money sits with the clerk of court, and in both you have to ask for it.

Mortgage foreclosure surplus in Florida

The surplus is what remains after the clerk makes every payment the final judgment of foreclosure requires, as shown on the certificate of disbursements Fla. Stat. §45.032(1)(c).

Who is entitled

Florida law creates a rebuttable presumption that the owner of record on the date the lis pendens was filed is entitled to the surplus, after payment of subordinate lienholders who timely filed a claim §45.032(2). The lis pendens is the recorded notice that the foreclosure lawsuit is pending. Subordinate lienholders include a second mortgage, a judgment, a tax warrant, an assessment lien or a construction lien shown on the pleadings §45.032(1)(b). The Legislature expressly abolished the older rule that the surplus belongs to whoever owned the property on the sale date §45.032(2).

Anyone else can overcome the presumption in only two ways: a voluntary assignment that meets strict conditions, or an involuntary transfer, which the statute says may result from an inheritance or the appointment of a guardian §45.033(2). That is the route for heirs of an owner who has died. Our guide for heirs claiming surplus funds covers the general steps.

How to claim it

You claim the surplus in the foreclosure case, through the clerk. The statute contains a sworn form, the “Owner’s Claim for Mortgage Foreclosure Surplus,” signed before a notary. On it you certify that you owned the property when the lis pendens was filed, that you owe nothing on another mortgage, judgment, tax warrant or association lien, that you are not in bankruptcy, and that you have not sold or assigned your right to the surplus §45.032(3)(a). The form also states that you are not required to have a lawyer and do not have to assign your rights to anyone to claim the money.

If you are the owner of record, no subordinate lienholder exists, and you claim before the surplus is reported as unclaimed, the court orders the clerk to pay you after deducting service charges. The clerk may require proof of identity and may help you make the claim. If anyone else claims part of the money, or you acknowledge that someone else may be entitled, the court sets an evidentiary hearing §45.032(3)(b).

The one-year deadline

One year after the sale, surplus the clerk has not paid out is presumed unclaimed and is reported and sent to the Florida Department of Financial Services, unless a court case about the money is still pending §45.032(3)(c). After that, only the owner of record the clerk reported, or the beneficiary of a deceased owner of record, is entitled to it, and the claim goes through the state instead of the clerk. A surplus of less than $10 goes to the clerk.

Tax deed sale surplus in Florida

When a tax deed sale brings more than the certificate holder’s statutory bid, the clerk first pays governmental units for liens of record they hold, such as omitted taxes. The clerk keeps the balance for the people who had an interest in the property and mails them a notice §197.582(2)(a). This is the Florida version of a tax-sale overage.

The 120-day claim window

The “Notice of Surplus Funds from Tax Deed Sale” comes with a claim form. You have 120 days from the date of the notice to file a written claim with the clerk §197.582(3). The claim is a sworn statement, signed before a notary or a deputy clerk, in which you say whether you are a lienholder or a former titleholder, with a copy of the notice attached. You can mail the claim (the postmark is the filing date), deliver it in person or by courier, or send it by fax or e-mail if the clerk allows §197.582(4).

Who is paid, and in what order

As far as possible, senior liens are paid in full before junior liens, and lienholders are paid before the former owner §197.582(2)(a). Lienholders and others who miss the 120 days are barred, and the statute exempts the property owner from that bar §197.582(5). Within 90 days after the claim period ends, the clerk either pays the claims in order of priority or files an interpleader action so a judge decides §197.582(6). If nobody files a claim within the 120 days, the law conclusively presumes that the legal titleholder of record is entitled, and the clerk processes the money under Florida’s unclaimed property law §197.582(9).

Even with the owner exception, filing within the 120 days keeps you in the clerk’s distribution.

Documents to gather

• The foreclosure case number, or the tax deed and certificate numbers for a tax deed sale.
• The sworn claim form from the statute or the clerk, signed before a notary (or a deputy clerk for a tax deed claim).
• Identification, because the clerk may require proof of identity §45.032(3)(a).
• Proof of former ownership, such as the recorded deed. The tax deed claim form asks for the recording date, instrument number, book and page if you know them §197.582(3).
• For lienholders: the type of lien, the original amount and an itemized amount now due.
• For heirs: proof of the inheritance, such as probate court papers. Ask the clerk which documents it accepts.

Recovery companies and fee limits in Florida

Florida sets firm limits, and they depend on where the money is.

• Mortgage foreclosure surplus. An assignment of your surplus rights is honored only if it is in writing, says you do not need an attorney or other representative to recover surplus funds, lists everything paid for it, includes the required financial disclosures, is filed with the court within 60 days after the certificate of disbursements, and the assignee’s total compensation is no more than 12 percent of the surplus §45.033(3).
• After the money reaches the state. A claimant representative must use the state’s recovery or purchase agreement form, and total fees and costs may not exceed 30 percent of the claimed amount §717.135(2)(j).
• Tax deed surplus. We could not confirm a fee cap in section 197.582. Read the statute and ask the clerk before you sign anything.

A cap is a ceiling, not a requirement to pay. The clerk’s process is built for owners to use directly. See how to claim surplus funds yourself and our overview of surplus recovery companies.

If the money already went to the state

Search Florida’s unclaimed property site, Claim Your Cash FL, run by the Department of Financial Services, and file there yourself. Our guide to unclaimed and escheated surplus funds explains that process.

Claiming Florida foreclosure surplus funds comes down to three things: the clerk holds the money, the statute says who is presumed entitled, and the clock starts at the sale or at the clerk’s notice. Compare other states in our surplus funds by state table, and confirm the details of your case with the clerk.