Short answer
In Florida judicial foreclosure cases, only the person who was the legal owner of the property on the date the lis pendens was filed (the “owner of record”) is entitled to claim any surplus funds left after the foreclosure sale, once subordinate lienholders are paid. If you were the owner on that date, you may claim the surplus directly from the clerk of court.
Why it matters
Understanding who qualifies as the “owner of record on the date of the lis pendens” is crucial because:
- Only this person (or their beneficiary, if deceased) can claim any surplus funds remaining after the foreclosure sale and payment of subordinate lienholders.
- If you bought or inherited the property after the lis pendens was filed, you are not eligible to claim the surplus.
- The surplus is not automatically paid out; you must take action to claim it from the clerk of the circuit court.
- Missing this detail can mean missing out on funds that could help you move forward after losing your home.
Steps
If you believe you may be entitled to a foreclosure surplus as the owner of record on the date of the lis pendens, here’s what to do:
Confirm the foreclosure was judicial In Florida, all mortgage foreclosures are judicial, meaning a court enters a final judgment of foreclosure and the sale is conducted by the clerk of the circuit court.
Check the court records Find the foreclosure case in the records of the circuit court where the property was located. Look for the date the lis pendens was filed. This is usually one of the first documents in the case.
Determine who was the owner of record on that date Review the property deed records to see who held title on the date the lis pendens was filed. If you were the owner on that date, you are the person eligible to claim any surplus (unless you have since died, in which case your beneficiary may claim).
Check for surplus funds After the foreclosure sale, the clerk of court holds any surplus funds in the court registry. The surplus is the amount left after paying what the final judgment directs, then any subordinate lienholder who filed a timely claim.
File a claim with the clerk of court You may file a claim for the surplus directly with the clerk of the circuit court. You do not need a lawyer or anyone else to do this, though you may choose to get help if you wish.
Understand the timing If the surplus is not claimed within one year after the sale, the clerk sends it to the Florida Department of Financial Services as unclaimed property. The money is not lost; it can still be claimed, but only by the owner of record or the beneficiary of a deceased owner, through the Department.
If surplus has been sent to the state If more than one year has passed and the surplus is now with the Florida Department of Financial Services, a claim must be made to the Department, not the clerk.
Example
Example for illustration only:
Suppose a homeowner named Maria owned her home in Palm Beach County. On January 1, 2023, her lender filed a judicial foreclosure and recorded a lis pendens. Maria was still the legal owner on that date. The court entered a final judgment, and the clerk of the circuit court held a foreclosure sale. The sale brought in $320,000. The judgment required $300,000 to pay off the mortgage and $5,000 to pay a subordinate lienholder who filed a timely claim. That left a surplus of $15,000. Maria, as the owner of record on the date of the lis pendens, may file a claim with the clerk of court for the $15,000 surplus. If she waits more than one year after the sale, the surplus will be sent to the Florida Department of Financial Services as unclaimed property, and she (or her beneficiary, if she has died) may claim it from the Department.
Note: This page covers mortgage foreclosure surplus only. Tax-deed surplus is a separate process with different rules and deadlines.
Common pitfalls
- Not checking the lis pendens date: Failing to confirm who was the owner of record on the date the lis pendens was filed can lead to a denied claim.
- Assuming anyone who owned the property can claim: Only the owner of record as of the lis pendens date (or their beneficiary) is eligible, not later buyers or heirs unless the owner has died.
- Missing the one-year mark: If you do not claim the surplus within one year, it is sent to the Florida Department of Financial Services as unclaimed property. The money is not lost, but the process to claim it changes.
- Confusing mortgage foreclosure surplus with tax-deed surplus: These are different legal processes with different rules. This page addresses only mortgage foreclosure surplus.
- Believing the lender or their attorney holds the surplus: The surplus is always held by the clerk of court, not the lender or their attorney.
- Not understanding the order of payment: The clerk pays as the final judgment directs, then subordinate lienholders who filed timely claims, then the owner of record as of the lis pendens date.
- Assigning rights without understanding the limits: If you assign your right to the surplus to someone else, such as a surplus recovery company, their total compensation is capped at 12 percent of the surplus by law.
Summary
- In Florida judicial foreclosures, only the owner of record on the date the lis pendens was filed (or their beneficiary, if deceased) may claim surplus funds after subordinate lienholders are paid.
- The surplus is held by the clerk of the circuit court, not the lender or their attorney.
- After one year, unclaimed surplus is sent to the Florida Department of Financial Services as unclaimed property, but it can still be claimed by the owner of record or their beneficiary.
- Carefully check court and property records to confirm your eligibility before filing a claim.
- Next steps: Review your foreclosure case file to confirm the lis pendens date and ownership, and contact the clerk of court to check for surplus funds.
This page provides general information and does not create an attorney-client relationship. Cruz Law Firm also represents former owners and beneficiaries of deceased owners in claims for surplus that has already been sent to the Florida Department of Financial Services as unclaimed property. Such claims are made to the Department, and only the owner of record or the beneficiary of a deceased owner may claim these funds.
Important information
Attorney advertising. Responsible attorney: Christian Cruz, Esq. Office: CRUZ LAW FIRM, 160 W Camino Real, 589, Boca Raton, FL, 33432.
Florida law does not require you to hire a lawyer or anyone else to claim foreclosure surplus funds. A former owner may file a claim with the clerk of court directly, and does not have to assign their rights to anyone to do so.
This page is general information about Florida law, not legal advice. Reading it does not create an attorney-client relationship, and no such relationship is formed until we have a signed written agreement.
Fee arrangements depend on the posture of the matter and are set out in a written agreement before any work begins. We are glad to explain how fees would work in your situation when we speak.
FAQ
Who is the “owner of record on the date of the lis pendens” in a Florida foreclosure?
This is the person who held legal title to the property on the date the lis pendens was filed in the foreclosure case. Only this person (or their beneficiary, if deceased) may claim any surplus funds after subordinate lienholders are paid.
Where is the foreclosure surplus held in Florida?
The surplus is held by the clerk of the circuit court in the court registry, not by the lender or their attorney.
What happens if I do not claim the surplus within one year after the foreclosure sale?
After one year, any surplus still held by the clerk is sent to the Florida Department of Financial Services as unclaimed property. The money is not lost, but from then on, only the owner of record or the beneficiary of a deceased owner may claim it from the Department.
Can I claim surplus funds if I bought the property after the lis pendens was filed?
No. Only the person who was the owner of record on the date the lis pendens was filed (or their beneficiary, if deceased) is eligible to claim the surplus.
Do I need a lawyer to claim foreclosure surplus funds in Florida?
No. Florida law allows the owner of record to claim surplus funds directly from the clerk of court. You may choose to get help, but it is not required.