So you did it. That is, assigned your right to surplus funds to one of those asset recovery companies that was knocking on your door the day your foreclosure sale took place. They paid a small amount of money for your full assignment of rights and you moved on with your life not knowing that you gave up hundreds of thousands of dollars in surplus funds, that rightfully belong to you.
This article is to let you know that even if you have already made this mistake, you can still potentially get your right to the surplus funds back.
In 2006, the Florida Legislature ratified Florida Statute 45.033(3) in order to protect former homeowners that have assigned all of their rights to surplus funds away. This statute requires the assignment of surplus funds to have specific language in order for the assignment to be valid. Thus, greatly enhancing the amount of legal protection for former homeowners against third party predators.
Specifically, Florida Statute 45.033(3) states:
(3) A voluntary transfer or assignment shall be a transfer or assignment qualified under this subsection, thereby entitling the transferee or assignee to the surplus funds or a portion or percentage of the surplus funds, if:
(a) The transfer or assignment is in writing and the instrument:
- If executed prior to the foreclosure sale, includes a financial disclosure that specifies the assessed value of the property, a statement that the assessed value may be lower than the actual value of the property, the approximate amount of any debt encumbering the property, and the approximate amount of any equity in the property. If the instrument was executed after the foreclosure sale, the instrument must also specify the foreclosure sale price and the amount of the surplus.
- Includes a statement that the owner does not need an attorney or other representative to recover surplus funds in a foreclosure.
- Specifies all forms of consideration paid for the rights to the property or the assignment of the rights to any surplus funds.
(b) The transfer or assignment is filed with the court on or before 60 days after the filing of the certificate of disbursements.
(c) There are funds available to pay the transfer or assignment after payment of timely filed claims of subordinate lienholders.
(d) The transferor or assignee is qualified as a surplus trustee, or could qualify as a surplus trustee, pursuant to s. 45.034.
(e) The total compensation paid or payable, or earned or expected to be earned, by the transferee or assignee does not exceed 12 percent of the surplus.
Many of these third party companies are not following the above statute. If any of the above requirements are not met, then the assignment does not constitute a voluntary assignment and you still may be able to claim those surplus funds!
However, if the court finds that the assignment does not fall under 45.033(3), the court may still give the surplus funds to the assignee under Florida Statute 45.033(5). This statute states:
If the court finds that a voluntary transfer or assignment does not qualify under subsection (3) but that the transfer or assignment was procured in good faith and with no intent to defraud the transferor or assignor, the court may order the clerk to pay the claim of the transferee or assignee after payment of timely filed claims of subordinate lienholders.
The MAJORITY of these third party asset companies are not following the law above.
My Advice: If you have assigned away your rights regarding a Florida Foreclosure Surplus Funds case and need a Miami Foreclosure Surplus Funds law firm, Fort Lauderdale Foreclosure Surplus Funds Law Firm, Orlando Foreclosure Surplus Funds Law Firm, Tampa Foreclosure Surplus Funds Law Firm, Palm Beach Foreclosure Surplus Funds Law Firm, Fort Myers Surplus Funds Lawyer or a Jacksonville Foreclosure Surplus Law Firm, the law firm of Haynes & de Paz would be happy to give you a free consultation. Contact us today!