Last week I represented a homeowner in yet another intricate Florida foreclosure surplus case. In this case, my client assigned all of his rights away to a 3rd party recovery company. He was paid no compensation (consideration) for his assignment. However, the assignment was invalid under Florida Statute 45.033(3), and I was able to prove such at the hearing. Counsel for the 3rd party recovery company made an argument that under Florida Statute 45.033(5), even if the assignment does not comply with subsection (3), that if the assignment was procured in good faith without the intent to defraud, that the court may still give the 3rd party the funds. This is what I designate as, the “Grey Area.” He was unable to prove such at that hearing.
I have blogged about this statute in the past, but I think it is of the upmost importance to dig in deeper to educate the homeowners about their rights. First off, Florida Legislature has made it very clear that they want homeowners to collect foreclosure surplus funds. Florida Statute 45.033(3) gives a great deal of protection to a former homeowner. In my opinion, these statutes were ratified because of surplus recovery 3rd parties that were defrauding hundreds of homeowners, especially in south Florida.
Now, understand that Florida Statute 45.033 starts by saying there is a rebuttable presumption that a former homeowner at the time of the lis pendens being filed, is entitled to the surplus funds. This doesn’t guarantee a homeowner a win, but a rebuttable presumption is just that, a presumption that the homeowner is entitled to the funds, unless rebutted by evidence. Therefore, a 3rd party that does not comply with Florida Statute 45.033(3), must hold an evidentiary hearing to show that the assignment was procured in good faith without the intent to defraud. I have seen many Florida foreclosure surplus funds hearings, and no matter how fair and equitable the 3rd party was in obtaining the assignment, the court heavily favors invalidating the assignment under Florida Statute 45.033 (3) and (5).
I believe this is because of two reasons, 1) the legislature made it clear of its intent to protect homeowners; and 2) judges understand that most surplus recovery companies are fly by night companies that are cheating homeowners out of their funds. Therefore, the burden is extremely difficult to overcome for the 3rd party, which is fantastic. However, homeowners should retain an experienced attorney to represent them in order to protect their rights at the hearing.
If you have assigned your rights away, and want an aggressive foreclosure surplus lawyer to give you a free consultation, please contact me and my firm today. I will personally look at your case and let you know what we can do for you to protect your surplus rights!
Whether you need a Miami Foreclosure Surplus Lawyer, Fort Lauderdale Foreclosure Surplus Lawyer, Orlando Foreclosure Surplus Lawyer, Tampa Foreclosure Surplus Funds Lawyer, Fort Myers Surplus Lawyer, Daytona Beach Surplus Lawyer, Palm Beach Surplus Lawyer or a Jacksonville Foreclosure Surplus Lawyer, the law firm of Haynes & de Paz will represent a homeowner in any county in Florida!