Florida Statute 45.033 | 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. 45.033

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.

History.—s. 3, ch. 2006-175; s. 4, ch. 2018-71; s. 2, ch. 2020-3.

F.S. 45.033 on Google Scholar

F.S. 45.033 on Casetext

Amendments to 45.033

Arrestable Offenses / Crimes under Fla. Stat. 45.033

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

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 45.033.

Annotations, Discussions, Cases:

Cases Citing Statute 45.033

Total Results: 17

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

Court: Fla. Dist. Ct. App. | Date Filed: 2023-05-24T00:53:00-07:00

Snippet: percent of the surplus funds in violation of section 45.033(3)(a)3.(d), Florida Statutes (2021). Petitioner… The court shall consider the factors in s. 45.033 when hearing a claim that any person other… the surplus funds. (Emphasis added.). Section 45.033(3) sets forth the requirements to qualify under

G & G 1016 LLC v. HERON BAY COMMUNITY ASSOCIATION

Court: Fla. Dist. Ct. App. | Date Filed: 2023-04-05T00:53:00-07:00

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

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

Court: Fla. Dist. Ct. App. | Date Filed: 2019-01-31T23:53:00-08:00

Snippet: consider the factors set forth in s. 45.033 in determining whether an assignment…presumption. (Emphases added.) Section 45.033(1) iterates that there is "a rebuttable presumption…surplus funds." Significantly, under section 45.033(2) the presumption may be rebutted "only …and unambiguous language of sections 45.032 and 45.033. See All Ctys. Surplus LLC v. Flamingo S. Beach

Eduartez v. Federal National Mortgage Assoc.

Court: Fla. Dist. Ct. App. | Date Filed: 2018-06-13T00:53:00-07:00

Snippet: different parties accordingly. See, e.g., §§ 45.032, 45.033, Fla. Stat. (2016). That the trial court might

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

Court: Fla. Dist. Ct. App. | Date Filed: 2018-06-13T00:00:00-07:00

Citation: 251 So. 3d 227

Snippet: different parties accordingly. See, e.g., §§ 45.032, 45.033, Fla. Stat. (2016). That the trial court might

Rodriguez v. Federal National Mortgage Ass'n

Court: Fla. Dist. Ct. App. | Date Filed: 2017-06-23T00:00:00-07:00

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

Snippet: certain limited circumstances not present here. See § 45.033, Fla. Stat. (2016). When the legislature has provided

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

Court: Fla. Dist. Ct. App. | Date Filed: 2017-01-25T00:00:00-08:00

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

Snippet: related provision of the surplus recovery law. See § 45.033(3), (5), Fla. Stat. (2007). It was under this set

Pineda v. Wells Fargo Bank, N.A.

Court: Fla. Dist. Ct. App. | Date Filed: 2014-07-23T00:00:00-07:00

Citation: 143 So. 3d 1008, 2014 WL 3608886, 2014 Fla. App. LEXIS 11199

Snippet: funds rights to an assignee pursuant to section 45.033(2)(a), Florida Statutes (2013), a situation which…lienholder,” see §§ 45.032(l)(a), (b); § 45.033(2), Fla. Stat., and thus was not entitled to any

Atwater v. City of Cape Coral

Court: Fla. Dist. Ct. App. | Date Filed: 2013-07-10T00:00:00-07:00

Citation: 120 So. 3d 595, 2013 WL 3449645

Snippet: 2006) Staff Analysis 2 (Apr. 20, 2006). Section 45.033(3)(a) provides that if the surplus is transferred

Vargas v. Deutsche Bank National Trust Co.

Court: Fla. Dist. Ct. App. | Date Filed: 2012-11-28T00:00:00-08:00

Citation: 104 So. 3d 1156, 2012 WL 5933055, 2012 Fla. App. LEXIS 20336

Snippet: of surplus funds following a judicial sale); § 45.033, Fla. Stat. (2012) (governing the sale or assignment

Suarez v. EDGEHILL

Court: Fla. Dist. Ct. App. | Date Filed: 2009-10-14T00:00:00-07:00

Citation: 20 So. 3d 410, 2009 Fla. App. LEXIS 15558, 2009 WL 3271350

Snippet: presumption of ownership may be rebutted. Id. § 45.033(2). One such option involves demonstrating the …of the foreclosure sale." Id. §§ 45.032(2), 45.033(1). Mr. Suarez is arguing that since he obtained…rejects that analysis. The language of paragraph 45.033(2)(b) is instructive. It does not talk about transfer…of the right to collect the surplus." Id. § 45.033(2)(b). For the stated reasons, we conclude that

National Equity Recovery Services, Inc. v. Midfirst Bank

Court: Fla. Dist. Ct. App. | Date Filed: 2009-03-18T00:00:00-07:00

Citation: 8 So. 3d 406, 2009 WL 690661

Snippet: section 45.033(3), the decision to award fees to the assignee is not discretionary; section 45.033(4) provides… did not comply with the time limits of section 45.033(3) and a surplus trustee properly appointed by …surplus trustee, pursuant to s. 45.034." § 45.033(3)(d), Fla. Stat. (2007). The statute thus allows…exposure to fees and costs at twelve percent. See §§ 45.033(3)(e), 45.034(7), Fla. Stat. (2007). After a foreclosure… the clerk for distribution to the owner. See § 45.033, Fla. Stat. (2007). Among other requirements, a

Above Par Loss Prevention, Inc. v. Albano

Court: Fla. Dist. Ct. App. | Date Filed: 2008-06-18T00:00:00-07:00

Citation: 983 So. 2d 775, 2008 Fla. App. LEXIS 9113, 2008 WL 2436149

Snippet: receipt of foreclosure proceeds pursuant to section 45.033(3), Florida Statutes. Appellant claimed that it

NATIONAL EQUITY RECOVERY SERVS. v. Williams

Court: Fla. Dist. Ct. App. | Date Filed: 2007-08-01T00:53:00-07:00

Citation: 962 So. 2d 977

Snippet: court shall consider the factors set forth in s. 45.033 in determining whether an assignment is sufficient…hearing. The court shall consider the factors in s. 45.033 when hearing a claim that any person other than… must consider the factors set forth in section 45.033, Florida Statutes (2006), in reaching that determination

Ago

Court: Fla. Att'y Gen. | Date Filed: 1976-04-19T23:53:00-08:00

Snippet: . Bayne, 75 N.W. 403; cf. 53 C.J.S. Licenses s. 45; 33 Am. Jur. Licenses s. 66; AGO 062-110. While the

Richardson v. State

Court: Fla. Dist. Ct. App. | Date Filed: 1967-01-17T00:00:00-08:00

Citation: 193 So. 2d 637, 1967 Fla. App. LEXIS 5173

Snippet: The total rental charge for one day’s use was $45.33 of which the mileage fee was $27.20. The rental

Chatham, Et Ux. v. Reynolds, Et Ux.

Court: Fla. | Date Filed: 1939-04-18T00:00:00-08:00

Citation: 188 So. 227, 137 Fla. 279

Snippet: 5c each ................................. 1.45 33.95