Florida Statute 45.032 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title VI
CIVIL PRACTICE AND PROCEDURE

Chapter 45
CIVIL PROCEDURE: GENERAL PROVISIONS

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F.S. 45.032

45.032 Disbursement of surplus funds after judicial sale.—

(1) For purposes of ss. 45.031-45.035, the term:

(a) “Owner of record” means the person or persons who appear to be owners of the property that is the subject of the foreclosure proceeding on the date of the filing of the lis pendens. In determining an owner of record, a person need not perform a title search and examination but may rely on the plaintiff’s allegation of ownership in the complaint when determining the owner of record.

(b) “Subordinate lienholder” means the holder of a subordinate lien shown on the face of the pleadings as an encumbrance on the property. The lien held by the party filing the foreclosure lawsuit is not a subordinate lien. A subordinate lienholder includes, but is not limited to, a subordinate mortgage, judgment, tax warrant, assessment lien, or construction lien. However, the holder of a subordinate lien shall not be deemed a subordinate lienholder if the holder was paid in full from the proceeds of the sale.

(c) “Surplus funds” or “surplus” means the funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements.

(2) 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. A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove to the court that such person is entitled to the funds. At any hearing regarding such entitlement, the court shall consider the factors set forth in s. 45.033 in determining whether an assignment is sufficient to overcome the presumption. It is the intent of the Legislature to abrogate the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale.

(3) During the period that the clerk holds the surplus pending a court order:

(a) If the owner of record claims the surplus before the date that 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. The clerk may establish a reasonable requirement that the owner of record prove his or her identity before receiving the disbursement. The clerk may assist an owner of record in making a claim. An owner of record may use the following form in making a claim:

(Caption of Action)

OWNER’S CLAIM FOR
MORTGAGE FORECLOSURE SURPLUS

State of

County of

Under penalty of perjury, I (we) hereby certify that:

1. I was (we were) the owner of the following described real property in County, Florida, prior to the foreclosure sale and as of the date of the filing of the lis pendens:

(Legal description of real property)

2. I (we) do not owe any money on any mortgage on the property that was foreclosed other than the one that was paid off by the foreclosure.

3. I (we) do not owe any money that is the subject of an unpaid judgment, tax warrant, condominium lien, cooperative lien, or homeowners’ association.

4. I am (we are) not currently in bankruptcy.

5. I (we) have not sold or assigned my (our) right to the mortgage surplus.

6. My (our) new address is: .

7. If there is more than one owner entitled to the surplus, we have agreed that the surplus should be paid jointly, or to: , at the following address: .

8. I (WE) UNDERSTAND THAT I (WE) AM (ARE) NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND I (WE) DO NOT HAVE TO ASSIGN MY (OUR) RIGHTS TO ANYONE ELSE IN ORDER TO CLAIM ANY MONEY TO WHICH I (WE) MAY BE ENTITLED.

9. I (WE) UNDERSTAND THAT THIS STATEMENT IS GIVEN UNDER OATH, AND IF ANY STATEMENTS ARE UNTRUE THAT I (WE) MAY BE PROSECUTED CRIMINALLY FOR PERJURY.

(Signatures)

Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

(Signature of Notary Public - State of Florida)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known OR Produced Identification

Type of Identification Produced

(b) If any person other than the owner of record claims an interest in the proceeds prior to the date that the clerk reports the surplus as unclaimed 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. At the evidentiary hearing, an equity assignee has the burden of proving that he or she is entitled to some or all of the surplus funds. The court may grant summary judgment to a subordinate lienholder prior to or at the evidentiary hearing. The court shall consider the factors in s. 45.033 when hearing a claim that any person other than a subordinate lienholder or the owner of record is entitled to the surplus funds.

(c) One year after the sale, any surplus remaining with the clerk of the court that has not been disbursed as provided herein is presumed unclaimed as set forth in s. 717.113 and must be reported and remitted to the department in accordance with ss. 717.117 and 717.119, unless there is a pending court proceeding regarding entitlement to the surplus. At the conclusion of any court proceeding and any appeal regarding entitlement to the surplus, the clerk of the court shall report and remit the unclaimed property to the department if directed by a court order, to another entity if directed by the court order, or, if not directed by the court order, to the owner of record. For purposes of establishing entitlement to the surplus after the property has been remitted to the department, only the owner of record reported by the clerk of the court, or the beneficiary, as defined in s. 731.201, of a deceased owner of record reported by the clerk, is entitled to the surplus. A surplus of less than $10 escheats to the clerk.

(4) Proceedings regarding surplus funds in a foreclosure case do not in any manner affect or cloud the title of the purchaser at the foreclosure sale of the property.

History.—s. 2, ch. 2006-175; s. 1, ch. 2007-106; s. 3, ch. 2018-71.

F.S. 45.032 on Google Scholar

F.S. 45.032 on Casetext

Amendments to 45.032

Arrestable Offenses / Crimes under Fla. Stat. 45.032

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 45.032.

Annotations, Discussions, Cases:

Cases Citing Statute 45.032

Total Results: 20

Marsdreamland LP v. MTGLQ Investors, L.P.

Court: District Court of Appeal of Florida | Date Filed: 2024-12-18

Snippet: Marsdreamland’s request for surplus funds. See § 45.032(2), Fla. Stat. (“There is established a rebuttable

Rapid Surplus Refund LLC v. Weeeee LLC

Court: District Court of Appeal of Florida | Date Filed: 2024-10-02

Snippet: surplus funds following the foreclosure sale. Section 45.032, governing “[d]isbursement of surplus funds after

NATIONAL EQUITY RECOVERY SERVICES, INC. v. IMPERIAL FUND TRUST

Court: District Court of Appeal of Florida | Date Filed: 2023-05-24

Snippet: action until resolution of the dispute, when section 45.032, Florida Statutes (2021), required the trial court

G & G 1016 LLC v. HERON BAY COMMUNITY ASSOCIATION

Court: District Court of Appeal of Florida | Date Filed: 2023-04-05

Snippet: 143 So. 3d 1008 (Fla. 3d DCA 2014). Sections 45.032 and 45.033, Florida Statutes (2021), govern the

ENRIQUE BENEDICTO PEREZ v. THE ESTATE OF OFELIA REITMAN

Court: District Court of Appeal of Florida | Date Filed: 2022-08-03

Snippet: hearing pursuant to section 45.032, Florida Statutes (2022). See § 45.032(3)(b) (“If any person other

FRANCIS P. DUDLAR v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., etc.

Court: District Court of Appeal of Florida | Date Filed: 2022-04-06

Snippet: Affirmed. See § 45.031(1)(a),(7), Fla. Stat. (2014); § 45.032(1)(b), Fla. Stat. (2014) (“‘Subordinate lienholder’

ORQUIDEA CASTELLANOS v. REVERSE MORTGAGE FUNDING LLC

Court: District Court of Appeal of Florida | Date Filed: 2021-05-12

Snippet: cannot apply to authorize an award of section 45.032, Florida Statutes (2019)). In contrast, absent

2017 BELL RANCH RESIDENTIAL LAND TRUST v. CAROL BURRILL AND WELLS FARGO FINANCIAL SYSTEM FLORIDA, INC.

Court: District Court of Appeal of Florida | Date Filed: 2019-02-01

Citation: 264 So. 3d 295

Snippet: section and ss. 45.0315-45.035." Section 45.032(2) in turn provides: There

The Bank of New York Mellon, etc. v. Dianne D. Glenville A/K/A Diane D. Glenville A/K/A Diane Glenville

Court: Supreme Court of Florida | Date Filed: 2018-09-06

Citation: 252 So. 3d 1120

Snippet: certificate of title." § 45.031(7)(a), Fla. Stat. Section 45.032(3), Florida Statutes (2015)-which neither

Eduartez v. Fed. Nat'l Mortg. Ass'n

Court: District Court of Appeal of Florida | Date Filed: 2018-06-13

Citation: 251 So. 3d 227

Snippet: held by the clerk,4 the clerk, pursuant to section 45.032(3)(c), appointed a surplus trustee to locate the

Eduartez v. Federal National Mortgage Assoc.

Court: District Court of Appeal of Florida | Date Filed: 2018-06-13

Snippet: 58 to Association.2 It was not until 1 Section 45.032(1)(a) defines the term “owner of record” as the

Choice Plus, LLC v. Department of Financial Services, etc.

Court: District Court of Appeal of Florida | Date Filed: 2018-04-17

Citation: 244 So. 3d 343

Snippet: result of various judicial processes. See, e.g., § 45.032, Fla. Stat. (2013) (detailing the process for surplus

Rodriguez v. Federal National Mortgage Ass'n

Court: District Court of Appeal of Florida | Date Filed: 2017-06-23

Citation: 220 So. 3d 577, 2017 WL 2730090, 2017 Fla. App. LEXIS 9126

Snippet: lienholders who have timely filed a claim.” Section 45.032(l)(a) defines the “owner of record” as the person

All Counties Surplus LLC v. Flamingo South Beach I Condominium Assoc., Inc.

Court: District Court of Appeal of Florida | Date Filed: 2017-02-15

Citation: 211 So. 3d 1096, 2017 WL 621258, 2017 Fla. App. LEXIS 2000

Snippet: 143 So.3d 1008, 1011 (Fla. 3d DCA 2014); see § 45.032(2), Fla. Stat. (2012) (“There is established a

Estate of Enemencia De Los Santos v. National Equity Recovery Services, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2017-01-25

Citation: 208 So. 3d 1268, 2017 WL 363138, 2017 Fla. App. LEXIS 730

Snippet: been appointed surplus trustee pursuant to section 45.032(3)(c) of the Florida Statutes more than nine months

Bunnie Straub v. Wells Fargo Bank, N.A. Chris Straub, JP Morgan Chase Bank, National Association, etc., and Faircondo, Inc., a Condominium Association

Court: District Court of Appeal of Florida | Date Filed: 2016-01-06

Citation: 182 So. 3d 878, 2016 Fla. App. LEXIS 259

Snippet: subordinate lienholders who have timely filed a claim.” § 45.032(2), Fla. Stat. (2014). A subordinate lienholder’s

Darcy L. Saulnier and Michael F. Saulnier v. Bank of America, N.A., Mortgage Electronic Registration Systems, Inc., Space Coast Credit Union and City of Tamarac

Court: District Court of Appeal of Florida | Date Filed: 2015-05-27

Snippet: statement in conspicuous type as required by section 45.032(2)(f), Florida Statutes (2012): ANY PERSON

Saulnier v. Bank of America, N.A.

Court: District Court of Appeal of Florida | Date Filed: 2015-03-25

Citation: 187 So. 3d 854, 2015 Fla. App. LEXIS 4274, 2015 WL 1334317

Snippet: statement in conspicuous type as required by section 45.032(2)(f), Florida Statutes (2012): ANY PERSON CLAIMING

Darcy L. Saulnier and Michael F. Saulnier v. Bank of America, N.A., Mortgage Electronic Registration Systems, Inc., Space Coast Credit Union and City of Tamarac

Court: District Court of Appeal of Florida | Date Filed: 2015-03-25

Snippet: statement in conspicuous type as required by section 45.032(2)(f), Florida Statutes (2012): ANY PERSON

Bondi v. Brito

Court: District Court of Appeal of Florida | Date Filed: 2015-03-13

Citation: 159 So. 3d 369, 2015 WL 1088400

Snippet: subsequent claims are processed. For instance, section 45.032 addresses the handling of proceeds from foreclosure