A foreclosure in Florida usually ends with a public auction. The property goes to the highest bidder, and the money from the sale pays what the court said was owed. Sometimes the winning bid is higher than that amount. The money left over is called surplus, and it does not belong to the bank.
This guide explains what Florida law says about foreclosure surplus and who can claim it. It is based on the text of Florida Statutes sections 45.031 and 45.032.
What counts as surplus
Section 45.032 defines surplus as the funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements.
In plain terms: the court's judgment lists who gets paid from the sale. After the sale, the clerk records those payments. Whatever is left after that is surplus, and the clerk of court holds it.
The judgment is supposed to warn you
Florida requires every foreclosure final judgment to include a notice about surplus, in conspicuous type. Under section 45.031(1)(a), it reads:
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS FINAL JUDGMENT.
If the property had a homestead exemption, section 45.031(1)(b) adds a second notice aimed at the owner. It tells the owner to check with the clerk of court within 10 days after the sale to see whether there is additional money in the court registry. It also says the owner may claim the funds without a lawyer or anyone else, and it urges owners to read carefully any papers they are asked to sign.
If you still have your final judgment, look for that language. It is there because the legislature wanted owners to know money may be left over.
Who is presumed to be entitled
Section 45.032(2) sets a starting point. The law presumes that the owner of record on the date the lis pendens was filed is the person entitled to the surplus, after any subordinate lienholders who timely filed a claim are paid.
Two terms matter here:
- Owner of record. The person or persons who appeared to own the property on the date the lis pendens was filed. The lis pendens is the notice recorded when the foreclosure case starts.
- Subordinate lienholder. The holder of a lower-priority lien shown in the case papers, such as a second mortgage, a judgment, a tax warrant, an assessment lien, or a construction lien. The lender that brought the foreclosure is not a subordinate lienholder.
This is a change from the older common law rule. The statute says the legislature intended to move away from treating surplus as the property of whoever owned the home on the date of the sale. Today the focus is the owner on the date the case began.
Other people who may claim
The owner of record is not the only possible claimant.
- Subordinate lienholders who file a timely claim are paid ahead of the owner from the surplus.
- Assignees. Someone who says the owner signed over the right to the surplus must prove to the court that they are entitled to it. The court weighs specific factors in section 45.033 before accepting an assignment.
If more than one person claims the money, or the owner acknowledges someone else may be entitled to part of it, section 45.032(3)(b) says the court will set an evidentiary hearing to decide who gets paid.
How a simple owner claim works
Section 45.032(3)(a) covers the most straightforward situation. If the owner of record claims the surplus before the clerk reports it as unclaimed, and there is no subordinate lienholder, the court orders the clerk to deduct any applicable service charges and pay the rest to the owner. The clerk may require the owner to prove their identity, and the clerk may help the owner make the claim.
The statute even includes a sworn form an owner can use. Among other things, the owner certifies that they do not owe money on another mortgage on the property, are not in bankruptcy, and have not sold or assigned their right to the surplus.
What happens if nobody claims it
Surplus does not wait forever at the courthouse. Under section 45.032(3)(c), one year after the sale, surplus still held by the clerk that has not been disbursed is presumed unclaimed. Unless there is a pending court proceeding about who is entitled to it, the clerk reports and sends it to the Florida Department of Financial Services under the state's unclaimed property law, chapter 717.
After that, the statute says only the owner of record reported by the clerk, or the beneficiary of a deceased owner of record, is entitled to the surplus. So the money can still be claimed, but the process moves from the clerk to the state.
Questions to ask
If you think surplus may be left from a foreclosure sale, these questions help:
- Which county was the property in, and what was the case number?
- What was the sale date, and has it been more than a year?
- Who was listed as owner when the case was filed? Include every name, including prior or maiden names.
- Were there other liens, like a second mortgage, an HOA lien, or a judgment?
- Has anyone asked you to sign papers about the surplus? If so, read them carefully before signing.
- Has the clerk sent the funds to the state's unclaimed property program?
Doing it on your own
Florida law allows owners to claim surplus themselves, and many simple claims can be handled directly with the clerk. Claims get harder when there are competing lienholders, more than one owner, a deceased owner, an assignment, or funds that have already moved to the state. Complicated claim? A Florida law firm can handle it for you.
Call (800) 583-0551 or start a free case review. No fee unless we recover money for you.
