Episode 3: The Rights of Heirs to an Estate’s Foreclosure Surplus Funds
Recently, I spoke with three heirs of an estate down in Broward County. There is a significant amount of foreclosure surplus funds left over after the foreclosure sale from the decedent’s property. However, obtaining these funds is not as simple as filing a boiler plate affidavit or a boiler plate motion. These copy and paste affidavits/motions that third party surplus companies file leave an opportunity for the heirs to not receive any funds at all.
Former homeowners collect foreclosure surplus funds quite differently, legally, than that of heirs of an estate. In fact, Florida Statutes are very clear that only owners at the time of the lis pendens being filed have a rebuttable presumption that they are entitled to the foreclosure surplus funds. Heirs are not generally the owner of record at the time of the foreclosure case being filed. Therefore, they must go a different route to claim the surplus funds.
The three heirs mentioned above had been contacted and bombarded by calls from several foreclosure surplus asset recovery companies. This plaintiff in this surplus case was a homeowner’s association. Therefore, there is still a mortgage outstanding on this property that was initially held by a private mortgage company. However, the mortgage was recently transferred to the United States via HUD. This is not a good sign for the heirs because according to many recent trial court decisions (which I vehemently disagree with!), HUD is not governed by Florida Statute 45.032. Therefore, the United States may attempt to claim this funds as a lien holder, even though they are not a subordinate lien holder in my opinion. Not only so, but the United States is not governed by the 60-day time frame (which is inherently bad law as well- I am appealing this very issue in the 5th DCA and have oral argument in March 2017!). Therefore, defeating a HUD claim for surplus funds is extremely difficult.
You may be reading the above paragraph and thinking, “wow, this is far more complicated than the surplus company told me it would be!” You’re correct, it is. In this specific case, the surplus companies told these heirs that the mortgage company would “not collect the funds.” First off, this is legal advice from non-lawyers which is illegal, second, due diligence and actual legal knowledge of the issues would require a different answer.
If these heirs hired a surplus recovery company, the heirs would most likely lose every penny. However, if they retain a top Florida foreclosure surplus lawyer of their own choosing, they may strategically be able to recover the funds.
Pick your own Florida foreclosure surplus lawyer to fight for you. Don’t let a surplus company pick your lawyer and file a boiler plate motion and lose your money. If you need a Miami Foreclosure Surplus Lawyer, Ft. Lauderdale Foreclosure Surplus Attorney, Palm Beach Foreclosure Surplus Attorney, Orlando Foreclosure Surplus Lawyer, Tampa Foreclosure Surplus Lawyer, Fort Myers Foreclosure Surplus Lawyer, Sarasota Foreclosure Surplus Lawyer, Pasco County Foreclosure Surplus Lawyer, Lake County Foreclosure Surplus Lawyer, Lakeland Foreclosure Surplus Lawyer, Lee County Foreclosure Surplus Lawyer, Broward Foreclosure Surplus Lawyer, Palm Beach Foreclosure Surplus Lawyer, Miami-Dade Foreclosure Surplus Attorney, or a Jacksonville Foreclosure Surplus Lawyer, the law firm of Haynes & de Paz will represent a homeowner in any county in Florida!