Chapter 14-5 Post-Judgment Claims for Surplus Funds

14-5 Post-Judgment Claims for Surplus Funds

Section 45.031 was amended in 2006 to require that the final judgment of foreclosure, the notice of sale, and the certificate of disbursements include certain language informing subordinate lienholders and other persons claiming a right to any surplus funds that they must file a claim with the clerk of court within "60 days after the sale."²⁴⁹ Various districts had interpreted "after the sale" as beginning at different times, so the Florida Supreme Court accepted conflict jurisdiction between the Fourth and Second Districts and rejected both of their approaches, instead holding, as a matter of pure statutory construction, that the 60 days to seek a surplus ran from the clerk's issuance of the certificate of disbursements.²⁵⁰ Also, the fact that the certificate of title contains an incorrect legal description and property address does not operate to toll the 60-day time period within which to file a claim for surplus funds.²⁵¹ However, issues pertaining to the 60-day window for filing a claim for surplus funds have been rendered moot because, effective July 1, 2019, the Legislature passed Committee Substitute for Committee Substitute for House Bill 1361 which, among other things, amended sections 45.031 and 45.032, as well as certain related sections of the Florida Statutes, to change the time period within which title owners, subordinate lienholders, and other persons must file a claim to the surplus amount.²⁵²

Section 45.032(2) provides that "there is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim."²⁵³ This presumption stands even in a foreclosure of an "agreement for deed" as opposed to a traditional mortgage.²⁵⁴ If the owner of record claims the surplus before the date the clerk reports it as unclaimed and there is no subordinate lienholder, the court shall order the clerk to deduct any applicable service charges from the surplus and pay the remainder to the owner of record.²⁵⁵ The clerk may establish a reasonable requirement that the owner of record prove his or her identity before receiving the disbursement.²⁵⁶ If any other person claims the surplus or if the owner of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus, the court shall set an evidentiary hearing to determine entitlement to the surplus.²⁵⁷ At the evidentiary hearing, an equity assignee has the burden of proving that he or she...