How to File a Motion to Claim Surplus Funds After a Foreclosure in Florida

Detailed Answer — How to file a motion to determine your right to surplus funds after a Florida foreclosure

When a foreclosure sale produces proceeds in excess of the amounts owed, the court or clerk holds the surplus until someone with a legal claim asks the court to release it. If your mother’s home was foreclosed and you believe you (as an heir, personal representative, beneficiary, or other interested party) are entitled to some or all of the surplus, you generally must do two things: (1) identify and document the surplus and your entitlement, and (2) file a formal motion/petition in the foreclosure case asking the court to determine rights and order distribution. Below are step‑by‑step actions that are commonly required under Florida law.

1. Confirm whether a surplus exists and find the foreclosure case.

• Contact the Clerk of Court in the county where the property was located. Ask whether a foreclosure sale occurred, whether surplus funds exist, and the foreclosure case number and sale date. The clerk can tell you whether the clerk or the court is holding funds.
• Obtain copies of the foreclosure final judgment, the certificate of sale, and the clerk’s accounting of sale (these show sale price, amounts paid to lienholders, and any recorded surplus).

2. Determine your legal basis to claim the funds.

• Common claimants include the former owner (or the owner’s probate estate), recorded junior lienholders, taxing authorities, and others with recorded interests. If the owner (your mother) is deceased, the estate or heirs usually have the primary claim. See Florida intestacy and probate statutes for how rights pass to heirs: Florida Statutes, Chapter 732 (intestate succession) and Chapter 733 (probate procedures).
• If the estate has already opened probate, locate the letters of administration or letters testamentary. If not, you may need probate documents or an heirship affidavit to show entitlement.

3. Assemble supporting documents.

Typical attachments you will need to include with your motion/petition:

• Certified copy of the foreclosure judgment and clerk’s accounting of sale (showing the surplus amount).
• Death certificate for your mother.
• Proof of your relationship or role — e.g., will identifying you as beneficiary, letters of administration, court-issued personal representative documents, or a signed affidavit of heirship.
• Documents showing there are no other superior claims (or identifying other lienholders and amounts owed to them).
• Government ID and any documents showing you have authority to claim funds for the estate or on behalf of heirs.

4. Draft the correct pleading — usually called a Petition or Motion to Determine Rights to Surplus Funds.

• Caption: Use the foreclosure case caption and number (the motion is typically filed in the same foreclosure case). Identify yourself and your interest.
• State the facts: foreclosure sale date, sale price, accounting showing the surplus, and your basis for entitlement (heir, personal representative, recorded lienholder, etc.).
• Attach exhibits: death certificate, probate letters or heirship affidavit, clerk’s accounting, and any other proof.
• Request relief: ask the court to determine the parties’ rights to the surplus and enter an order directing the clerk to disburse funds to you (or to the estate) and to award costs/fees if appropriate.

5. Serve the motion on required parties and file proof of service.

• Serve all parties who participated in the foreclosure (plaintiff/loan servicer, mortgagee, all recorded lienholders, defendants named in the foreclosure, and any party listed by the clerk as having an interest). Florida court rules and local rules govern service methods.
• File a certificate of service with the court showing who was served and how.

6. Request a hearing if required and be ready for objections.

• The court or clerk may set a hearing. Other claimants (creditors, lienholders, or heirs) can oppose your claim. Be prepared to present documentary evidence and testimony.
• If the dispute is purely among claimants, the court decides entitlement and issues an order directing the clerk to disburse funds accordingly.

7. Obtain a court order and collect funds from the clerk.

• If the court rules in your favor, it will enter an order directing the clerk to pay you (or the estate). The clerk then disburses the surplus according to that order.
• Expect the clerk to require an original certified court order and identification before releasing funds. The clerk may also require an IRS W‑9 or vendor form for payment.

Key Florida statutory references

Procedures that govern judicial sales and distribution of sale proceeds are found in Florida Statutes, Chapter 45 (Judicial Sales). You can review the statutes here: Florida Statutes Chapter 45.

If the owner died and you are claiming funds as an heir or on behalf of the estate, Florida’s probate and intestacy rules are relevant: Chapter 732 (Intestate Succession) and Chapter 733 (Administration of Estates).

When probate matters intersect with surplus claims

If the decedent’s estate is open in probate, the personal representative should make the claim for surplus on behalf of the estate. If there is no probate case, you may need to open probate (or use a small estate procedure) or file an affidavit of heirship and other proof acceptable to the court and clerk. Consult the probate statutes above for the correct document types.

Possible complications to expect

• Multiple claimants or competing liens — the court resolves priorities.
• Missing or incomplete probate paperwork — the clerk may refuse to disburse until you supply a court order, letters, or other proof.
• Time and costs — contested cases take longer and can require attorney involvement; the clerk may charge administrative fees.

Helpful Hints

• Start with the clerk: get a certified copy of the sale accounting and confirm the exact surplus amount.
• Check whether anyone already filed a claim for the surplus on the foreclosure docket before you file.
• If your mother died, obtain a certified death certificate early and determine if probate exists for her estate.
• If no probate exists but the estate’s assets are small, ask a probate attorney about summary administration or a disposition without administration.
• Use the foreclosure case number as the caption in your motion so the court and clerk can link documents to the correct case file.
• Serve all parties listed in the foreclosure case and file proof of service promptly. Failure to properly serve can delay or invalidate your claim.
• Keep originals and certified copies of all exhibits and orders; the clerk will often require original certified court orders to release funds.
• Consider hiring a Florida attorney who handles foreclosure surplus claims and probate — contested surplus matters can turn on detailed procedural or probate issues.

Disclaimer: This article explains general steps under Florida law but is not legal advice. It does not create an attorney–client relationship. For advice about your specific situation—especially when probate, multiple claimants, or conflicting liens are involved—consult a Florida attorney.