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Jacqueline Alicia Salcines

WHO IS ENTITLED TO THE SURPLUS AFTER A FORECLOSURE SALE?

office2-300x137.jpgIn a recent Third District Court of Appeal case, the higher court rules that a Miami-Dade couple was entitled to a $99,500.00 surplus that was left over after the foreclosure sale. The lower court, Judge Diane Ward, held that the bank was entitled to the surplus. The homeowners had two mortgages, and the property was sold at auction on March 2013. The home was purchased at auction by a third party bidder who bid $184,000.00. After paying off the mortgage, $99,500.00 remained.

The third party bidder then filed a Motion for Surplus Funds so that the surplus could be remitted to the first lender. The homeowners also filed a Motion for the surplus. Because the homeowners had filed for bankruptcy, the third party purchaser argued that they would be "unjustly enriched" a legal term that means that they are getting a benefit without paying anything for it. The mortgage had been discharged in bankruptcy and a discharge of their debt obtained. Judge Ward awarded the surplus of $99,500.00 to the third party purchaser. The homeowners appealed.

The District Court of Appeals state in opinion that the law clearly showed that the property owner of record at the time of the sale is the one entitled to the surplus. "Where the legislature has provided such a process, courts are not free to deviate from that process absent express authority. (Quote from Judge Ed Scales on the Opinion ruling).

In order to claim the surplus, homeowners must file motions in a timely manner. Thereafter, the motion must be heard by the presiding Judge in order to obtain an Order directing the clerk to issue the surplus.

At the Law Offices of Jacqueline A. Salcines, PA, we have extensive experience in seeking surplus funds for our clients. We invite you to call and speak to attorney Jacqueline A. Salcines, Esq. today. The first consult is always free.

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