Florida Statutes
Fla. Stat. § 45.033 (2025)
Sale or assignment of rights to surplus funds in a property subject to foreclosure.
✓ 2025 Florida Statutes — current through the 2025 Regular Session
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45.033 Sale or assignment of rights to surplus funds in a property subject to foreclosure.—
(1) There is established a rebuttable presumption that the owner of record of real property 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 entitlement to the surplus funds pursuant to this section. 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.
(2) The presumption may be rebutted only by:
(a) The grantee or assignee of a voluntary transfer or assignment establishing a right to collect the surplus funds or any portion or percentage of the surplus funds by proving that the transfer or assignment qualifies as a voluntary transfer or assignment as provided in subsection (3); or
(b) The grantee or assignee proving that the grantee or assignee is a grantee or assignee by virtue of an involuntary transfer or assignment of the right to collect the surplus. An involuntary transfer or assignment may be as a result of inheritance or as a result of the appointment of a guardian.
(3) A voluntary transfer or assignment shall be a transfer or assignment qualified under this subsection, thereby entitling the transferee or assignee to the surplus funds or a portion or percentage of the surplus funds, if:
(a) The transfer or assignment is in writing and the instrument:
1. If executed prior to the foreclosure sale, includes a financial disclosure that specifies the assessed value of the property, a statement that the assessed value may be lower than the actual value of the property, the approximate amount of any debt encumbering the property, and the approximate amount of any equity in the property. If the instrument was executed after the foreclosure sale, the instrument must also specify the foreclosure sale price and the amount of the surplus.
2. Includes a statement that the owner does not need an attorney or other representative to recover surplus funds in a foreclosure.
3. Specifies all forms of consideration paid for the rights to the property or the assignment of the rights to any surplus funds.
(b) The transfer or assignment is filed with the court on or before 60 days after the filing of the certificate of disbursements.
(c) There are funds available to pay the transfer or assignment after payment of timely filed claims of subordinate lienholders.
(d) The total compensation paid or payable, or earned or expected to be earned, by the transferee or assignee does not exceed 12 percent of the surplus.
(4) The court shall honor a transfer or assignment that complies with the requirements of subsection (3), in which case the court shall order the clerk to pay the transferor or assignee from the surplus.
(5) If the court finds that a voluntary transfer or assignment does not qualify under subsection (3) but that the transfer or assignment was procured in good faith and with no intent to defraud the transferor or assignor, the court may order the clerk to pay the claim of the transferee or assignee after payment of timely filed claims of subordinate lienholders.
(6) If a voluntary transfer or assignment of the surplus is set aside, the owner of record shall be entitled to payment of the surplus after payment of timely filed claims of subordinate lienholders, but the transferee or assignee may seek in a separate proceeding repayment of any consideration paid for the transfer or assignment.
(7) This section does not apply to a deed, mortgage, or deed in lieu of foreclosure unless a person other than the owner of record is claiming that a deed or mortgage entitles the person to surplus funds. Nothing in this section affects the title or marketability of the real property that is the subject of the deed or other instrument. Nothing in this section affects the validity of a lien evidenced by a mortgage.
Notes of Decisions
Cited in 14
cases (4 in the last 5 years), 2007–2026 · leading case: Nat'l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So. 3d 406 (Fla. 4th DCA 2009).
Nat'l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So. 3d 406 (Fla. 4th DCA 2009). “See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment un *408 der the statute must be “filed with the court on or before 60 days after the filing of the certificate of disbursements.”
Pineda v. Wells Fargo Bank, N.A., 143 So. 3d 1008 (Fla. 3d DCA 2014). “The Notice of Lis Pendens, 2 recorded September 9, 2009, reflects the Pinedas owned the subject property.”
Vargas v. Deutsche Bank Nat'l Trust Co., 104 So. 3d 1156 (Fla. 3d DCA 2012). “(2012) (governing disbursement of surplus funds following a judicial sale); § 45.033, Fla. Stat. (2012) (governing the sale or assignment of rights to surplus funds in property subject to foreclosure); § 45.”
Rodriguez v. Fed. Nat'l Mortg. Ass'n, 220 So. 3d 577 (Fla. 5th DCA 2017). “See § 45.033, Fla. Stat. (2016). When the legislature has provided such a process, courts are not free to deviate from that process absent express authority.”
Above Par Loss Prevention, Inc. v. Albano, 983 So. 2d 775 (Fla. 4th DCA 2008). “The appellant complains of an order authorizing disbursement of surplus funds to National Equity Recovery Services (“NERS”), a surplus trustee for the receipt of foreclosure proceeds pursuant to section 45.033(3), Florida Statutes. Appellant claimed that it was entitled to the…”
Atwater v. City of Cape Coral, 120 So. 3d 595 (Fla. 2d DCA 2013). “Section 45.033(3)(a) provides that if the surplus is transferred or assigned, the grantee/as-signee also must notify the owner that an attorney or other representative is not needed to recover surplus funds in a foreclosure.”
Nat'l Equity Recovery Servs. v. Williams, 962 So. 2d 977 (Fla. 3d DCA 2007). “The statute mandates that the court "shall set an evidentiary *980 hearing" to determine entitlement and that it must consider the factors set forth in section 45.033, Florida Statutes (2006), in reaching that determination.”
Suarez v. Edgehill, 20 So. 3d 410 (Fla. 3d DCA 2009). “§ 45.033(2). One such option involves demonstrating the existence of an involuntary transfer or assignment.”
Nat'l Equity Recovery Servs., Inc. v. Lisa M Quinn, Individually & as Pers. Rep. of the Est. of Norman & Kathleen Lauterbach, Fairview Isles Condo Ass'n, Inc, & Amerifund Equity Grp. (Fla. 6th DCA 2026). “” See § 45.033(1), Fla. Stat. (2024). If a person claims surplus proceeds as a property owner’s assignee, they must rebut this presumption.”
Alexander Schachl (Bankr. S.D. Florida 2025). “032 (2); see also Fla. Stat. § 45.033 (1). Florida Statute § 45.”
Est. of Enemencia De Los Santos v. Nat'l Equity Recovery Servs., Inc., 208 So. 3d 1268 (Fla. 3d DCA 2017). “See § 45.033(3), (5), Fla. Stat. (2007). It was under this set of facts that the court ordered a division of the service fee.”
2017 Bell Ranch Residential Land Trust v. Carol Burrill & Wells Fargo Fin. Sys. Florida, Inc., 264 So. 3d 295 (Fla. 2d DCA 2019). “) Section 45.033(1) iterates that there is "a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is the person entitled to surplus funds.”
— 45.033(1) — 2 cases
Nat'l Equity Recovery Servs., Inc. v. Lisa M Quinn, Individually & as Pers. Rep. of the Est. of Norman & Kathleen Lauterbach, Fairview Isles Condo Ass'n, Inc, & Amerifund Equity Grp. (Fla. 6th DCA 2026). “” See § 45.033(1), Fla. Stat. (2024). If a person claims surplus proceeds as a property owner’s assignee, they must rebut this presumption.”
2017 Bell Ranch Residential Land Trust v. Carol Burrill & Wells Fargo Fin. Sys. Florida, Inc., 264 So. 3d 295 (Fla. 2d DCA 2019). “) Section 45.033(1) iterates that there is "a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is the person entitled to surplus funds.”
— 45.033(2) — 4 cases
Pineda v. Wells Fargo Bank, N.A., 143 So. 3d 1008 (Fla. 3d DCA 2014). “The Notice of Lis Pendens, 2 recorded September 9, 2009, reflects the Pinedas owned the subject property.”
Suarez v. Edgehill, 20 So. 3d 410 (Fla. 3d DCA 2009). “§ 45.033(2). One such option involves demonstrating the existence of an involuntary transfer or assignment.”
2017 Bell Ranch Residential Land Trust v. Carol Burrill & Wells Fargo Fin. Sys. Florida, Inc., 264 So. 3d 295 (Fla. 2d DCA 2019). “) Section 45.033(1) iterates that there is "a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is the person entitled to surplus funds.”
Alexander Schachl (Bankr. S.D. Florida 2025). “032 (2); see also Fla. Stat. § 45.033 (1). Florida Statute § 45.”
— 45.033(2)(a) — 1 case
Pineda v. Wells Fargo Bank, N.A., 143 So. 3d 1008 (Fla. 3d DCA 2014). “The Notice of Lis Pendens, 2 recorded September 9, 2009, reflects the Pinedas owned the subject property.”
— 45.033(2)(b) — 1 case
Suarez v. Edgehill, 20 So. 3d 410 (Fla. 3d DCA 2009). “§ 45.033(2). One such option involves demonstrating the existence of an involuntary transfer or assignment.”
— 45.033(3) — 4 cases
Above Par Loss Prevention, Inc. v. Albano, 983 So. 2d 775 (Fla. 4th DCA 2008). “The appellant complains of an order authorizing disbursement of surplus funds to National Equity Recovery Services (“NERS”), a surplus trustee for the receipt of foreclosure proceeds pursuant to section 45.033(3), Florida Statutes. Appellant claimed that it was entitled to the…”
Nat'l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So. 3d 406 (Fla. 4th DCA 2009). “See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment un *408 der the statute must be “filed with the court on or before 60 days after the filing of the certificate of disbursements.”
Est. of Enemencia De Los Santos v. Nat'l Equity Recovery Servs., Inc., 208 So. 3d 1268 (Fla. 3d DCA 2017). “See § 45.033(3), (5), Fla. Stat. (2007). It was under this set of facts that the court ordered a division of the service fee.”
Nat'l Equity Recovery Servs., Inc. v. Imperial Fund Trust (Fla. 4th DCA 2023).
— 45.033(3)(a) — 3 cases
Atwater v. City of Cape Coral, 120 So. 3d 595 (Fla. 2d DCA 2013). “Section 45.033(3)(a) provides that if the surplus is transferred or assigned, the grantee/as-signee also must notify the owner that an attorney or other representative is not needed to recover surplus funds in a foreclosure.”
Nat'l Equity Recovery Servs., Inc. v. Imperial Fund Trust (Fla. 4th DCA 2023).
Nat'l Equity Recovery Servs., Inc. v. Lisa M Quinn, Individually & as Pers. Rep. of the Est. of Norman & Kathleen Lauterbach, Fairview Isles Condo Ass'n, Inc, & Amerifund Equity Grp. (Fla. 6th DCA 2026). “” See § 45.033(1), Fla. Stat. (2024). If a person claims surplus proceeds as a property owner’s assignee, they must rebut this presumption.”
— 45.033(3)(d) — 2 cases
Nat'l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So. 3d 406 (Fla. 4th DCA 2009). “See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment un *408 der the statute must be “filed with the court on or before 60 days after the filing of the certificate of disbursements.”
Nat'l Equity Recovery Servs., Inc. v. Lisa M Quinn, Individually & as Pers. Rep. of the Est. of Norman & Kathleen Lauterbach, Fairview Isles Condo Ass'n, Inc, & Amerifund Equity Grp. (Fla. 6th DCA 2026). “” See § 45.033(1), Fla. Stat. (2024). If a person claims surplus proceeds as a property owner’s assignee, they must rebut this presumption.”
— 45.033(3)(e) — 1 case
Nat'l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So. 3d 406 (Fla. 4th DCA 2009). “See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment un *408 der the statute must be “filed with the court on or before 60 days after the filing of the certificate of disbursements.”
— 45.033(4) — 2 cases
Nat'l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So. 3d 406 (Fla. 4th DCA 2009). “See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment un *408 der the statute must be “filed with the court on or before 60 days after the filing of the certificate of disbursements.”
Nat'l Equity Recovery Servs., Inc. v. Lisa M Quinn, Individually & as Pers. Rep. of the Est. of Norman & Kathleen Lauterbach, Fairview Isles Condo Ass'n, Inc, & Amerifund Equity Grp. (Fla. 6th DCA 2026). “” See § 45.033(1), Fla. Stat. (2024). If a person claims surplus proceeds as a property owner’s assignee, they must rebut this presumption.”
— 45.033(5) — 2 cases
Nat'l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So. 3d 406 (Fla. 4th DCA 2009). “See § 45.033, Fla. Stat. (2007). Among other requirements, a valid assignment un *408 der the statute must be “filed with the court on or before 60 days after the filing of the certificate of disbursements.”
Rapid Surplus Recovery LLC v. Bowling, Vaughn (Fla. 1st DCA 2025).
— 45.033(6) — 1 case
Nat'l Equity Recovery Servs., Inc. v. Lisa M Quinn, Individually & as Pers. Rep. of the Est. of Norman & Kathleen Lauterbach, Fairview Isles Condo Ass'n, Inc, & Amerifund Equity Grp. (Fla. 6th DCA 2026). “” See § 45.033(1), Fla. Stat. (2024). If a person claims surplus proceeds as a property owner’s assignee, they must rebut this presumption.”
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