The 2023 Florida Statutes (including Special Session C)

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 from cite.case.law:

BELL RANCH RESIDENTIAL LAND TRUST, v. BURRILL, 264 So. 3d 295 (Fla. App. Ct. 2019)

. . . Section 45.032(2) in turn provides: There is established a rebuttable legal presumption that the owner . . . The order contravened the plain and unambiguous language of sections 45.032 and 45.033. . . . Ass'n, 211 So.3d 1096, 1097 (Fla. 3d DCA 2017) (determining that the language of section 45.032 is plain . . .

BANK OF NEW YORK MELLON, v. D. GLENVILLE a k a D. a k a, 252 So. 3d 1120 (Fla. 2018)

. . . See § 45.032(3), Fla. Stat. . . . Because we find section 45.032-and in particular subsection 45.032(3)-to be dispositive of the conflict . . . Section 45.032 As an initial matter, section 45.032(1) defines certain terms that apply not just for . . . Section 45.032 is "closely related" to section 45.031. Id. at 576. . . . See §§ 45.031(6), 45.032(1)(c), Fla. Stat. . . .

F. EDUARTEZ, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION,, 251 So. 3d 227 (Fla. App. Ct. 2018)

. . . the remaining $8,938.00 in surplus proceeds being held by the clerk, the clerk, pursuant to section 45.032 . . . See, e.g., §§ 45.032, 45.033, Fla. Stat. (2016). . . . Section 45.032(1)(a) defines the term "owner of record" as the person appearing to own the property being . . .

CHOICE PLUS, LLC, v. DEPARTMENT OF FINANCIAL SERVICES, BUREAU OF UNCLAIMED PROPERTY, 244 So. 3d 343 (Fla. App. Ct. 2018)

. . . See, e.g. , § 45.032, Fla. . . . the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032 . . . once surplus judicial funds were transferred to the Chief Financial Officer, the provisions of section 45.032 . . . Compare § 45.032(4), Fla. . . .

M. RODRIGUEZ, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION,, 220 So. 3d 577 (Fla. Dist. Ct. App. 2017)

. . . Section 45.032(l)(a) defines the “owner of record” as the person who appears to be the owner of the property . . . Id. § 45.032(l)(b). . . . See § 45.032(3)(a), Fla. Stat. (2016). That did not happen here. . . . See § 45.032(1)(a), Fla. Stat. (2016). . . .

ALL COUNTIES SURPLUS LLC, v. FLAMINGO SOUTH BEACH I CONDOMINIUM ASSOCIATION, INC. Y LLC,, 211 So. 3d 1096 (Fla. Dist. Ct. App. 2017)

. . . Wells Fargo Bank, N.A., 143 So.3d 1008, 1011 (Fla. 3d DCA 2014); see § 45.032(2), Fla. . . . appropriate motions for surplus funds, and' for further proceedings consistent with this opinion and section 45.032 . . .

ESTATE OF ENEMENCIA DE LOS SANTOS, v. NATIONAL EQUITY RECOVERY SERVICES, INC., 208 So. 3d 1268 (Fla. Dist. Ct. App. 2017)

. . . of disbursement, despite the fact that NERS had been appointed surplus trustee pursuant to section 45.032 . . .

STRAUB, v. WELLS FARGO BANK, N. A. JP f k a F. A. a, 182 So. 3d 878 (Fla. Dist. Ct. App. 2016)

. . . .” § 45.032(2), Fla. Stat. (2014). . . . A subordinate lienholder’s claim to surplus from the sale is timely under section 45.032(2) when it is . . .

L. SAULNIER F. v. BANK OF AMERICA, N. A., 187 So. 3d 854 (Fla. Dist. Ct. App. 2015)

. . . The [homeowners] have priority in the distribution of the surplus pursuant to § 45.032(2), Fla. . . . Further, section 45.032(2)’s plain language quoted above establishes a re-buttable legal presumption . . . See § 45.032(3)(b), Fla. . . . The [homeowners] have priority in the distribution of the surplus pursuant to § 45.032(2), Fla. . . . See § 45.032(3)(b), Fla. . . .

Jo BONDI, v. BRITO H. v. H. v. C. Jr. E. H. v. Ra L. Sr. L. Jr., 159 So. 3d 369 (Fla. Dist. Ct. App. 2015)

. . . handling of unclaimed funds under section 43.19 with the handling of unclaimed funds under section 45.032 . . . that is, regardless of whether the funds are determined to be unclaimed under section 43.19 or section 45.032 . . . This court has previously determined that where funds were deposited with the CFO pursuant to section 45.032 . . . Section 45.032(4) provides that “the clerk [of. court] shall treat the remaining funds as unclaimed property . . . For instance, section 45.032 addresses the handling of proceeds from foreclosure sales held by the clerk . . . However, in contrast to section 45.032, section 43.19 contains no language directing that the deposits . . . transferred to the CFO to the provisions of chapter 717 as is demonstrated by the language of section 45.032 . . . might be of the specific types otherwise governed by separate statutes such as those related to section 45.032 . . .

J. DEVER A. v. WELLS FARGO BANK NATIONAL ASSOCIATION, As RBC USA, 147 So. 3d 1045 (Fla. Dist. Ct. App. 2014)

. . . Further, section 45.032(2) establishes a rebuttable presumption that the owner of record is entitled . . . Section 45.032(3)(b) provides in relevant part: If any person other than the owner of record claims an . . . Section 45.032 then provides the procedure for the disbursement of surplus funds after a judicial sale . . . Section 45.032(3) provides that the clerk shall hold the surplus for sixty days after the certificate . . . So section 45.032(3)(b), read in the context of the surrounding statutory sections, clearly indicates . . .

PINEDA v. WELLS FARGO BANK, N. A., 143 So. 3d 1008 (Fla. Dist. Ct. App. 2014)

. . . The Pinedas contended they had priority in the distribution of the surplus funds pursuant to section 45.032 . . . Section 45.032(2) reads, in relevant part, “There is established a rebuttable legal presumption that . . . Section 45.032(l)(a), Florida Statutes (2013), defines the “owner of record” as the person who appears . . . While the statutory presumption is “rebuttable,” section 45.032(2) expressly delineates the circumstances . . . See § 45.032(l)(a), Fla. Stat. . . .

W. MATHEWS B. v. BRANCH BANKING TRUST CO., 139 So. 3d 498 (Fla. Dist. Ct. App. 2014)

. . . . § 45.032(3). . . . . § 45.032(3)(a). . . . This requirement was added to sections 45.031 and 45.032 in 2006. . . .

In ORDER DIRECTING PAYMENT OF v., 136 So. 3d 1248 (Fla. Dist. Ct. App. 2014)

. . . See § 45.032(4). . . .

H. ATWATER, v. CITY OF CAPE CORAL R. H. v. H. v. f k a, 120 So. 3d 595 (Fla. Dist. Ct. App. 2013)

. . . The surplus funds were the result of judicial foreclosure sales, and therefore section 45.032, Florida . . . Section 45.032 became effective July 1, 2006. . . . Section 45.032 is procedural in nature. . . . See § 45.032(3)(c). . . . See § 45.032(4). . . .

VARGAS, v. DEUTSCHE BANK NATIONAL TRUST CO., 104 So. 3d 1156 (Fla. Dist. Ct. App. 2012)

. . . Stat. (2012) (governing the right of redemption); § 45.032, Fla. . . .

SUAREZ, v. EDGEHILL,, 20 So. 3d 410 (Fla. Dist. Ct. App. 2009)

. . . .” § 45.032(l)(a), Fla. Stat. (2008) (emphasis added). . . . Id. § 45.032(2). . . . Id. §§ 45.032(2), 45.033(1). Mr. . . . relevant date for determining the “owner of record” is the date of the filing of the lis pendens, id. § 45.032 . . . See § 45.032(1)(b), (c), Fla. Stat. (2008). . . .

NATIONAL EQUITY RECOVERY SERVICES, INC. v. MIDFIRST BANK,, 8 So. 3d 406 (Fla. Dist. Ct. App. 2009)

. . . On August 22, 2007, pursuant to section 45.032(3)(c), the clerk appointed Home-works Recovery Services . . . appoint a surplus trustee from a list of qualified surplus trustees as authorized in s. 45.034.” § 45.032 . . .

NATIONAL EQUITY RECOVERY SERVICES, INC. v. WILLIAMS, 962 So. 2d 977 (Fla. Dist. Ct. App. 2007)

. . . in entering the disbursement Order without first holding an evidentiary hearing pursuant to Section 45.032 . . . 9, 2007, NERS filed a Motion for Order Directing Clerk to Release Excess Funds, pursuant to section 45.032 . . . Section 45.032, Florida Statutes (2006), entitled Disbursement of Surplus Funds After Judicial Sale, . . . and the ease is remanded to the trial court to conduct an evidentiary hearing pursuant to sections 45.032 . . .