Detailed Answer
When a foreclosure sale produces money in excess of what is needed to satisfy liens and costs, those remaining funds (often called “surplus funds” or “overage”) are held by the clerk of the court. A person or entity claiming entitlement to those funds must show clear proof of ownership or superior right to the funds. Below is a step‑by‑step explanation of the types of documentation Florida courts and clerks commonly require and why each item matters.
Where the law applies
Florida’s rules for judicial sales and distribution of proceeds are set out in Chapter 45 of the Florida Statutes, which governs writs, judicial sales, and the clerk’s duties regarding sale proceeds. See the court and clerk procedures under Chapter 45 for how surplus funds are handled: Florida Statutes, Chapter 45 (Judicial Sales). Specific sections address duties related to sale proceeds and distributions; contact the clerk’s office in the county of sale for the clerk’s claim form and local requirements.
Who can claim surplus funds
Typical claimants include the former property owner (the mortgagor), any junior lienholder who had a recorded interest at the time of sale, heirs or devisees of a deceased owner, trustees or beneficiaries of a trust that owned the property, or a personal representative of an estate. Each claimant type must supply documentary proof that establishes the claimant’s right to the surplus.
Primary documents to prove ownership or entitlement
- Recording evidence (deed, title documents): A recorded deed showing ownership at the time of sale, or other recorded instrument (e.g., quitclaim deed, survivorship deed). If the claimant is not the person named on the deed, supply additional documents showing how title passed (e.g., death certificate + survivorship affidavit or probate paperwork).
- Final judgment or foreclosure file: The foreclosure case docket or clerk’s certificate showing the sale and the surplus amount. This helps the clerk match the claim to the correct sale.
- Probate or estate documents (if applicable): If the titled owner died before or after the sale, provide a certified copy of the death certificate plus probate documents (letters testamentary/letters of administration) or a certified order closing probate showing distribution of the property.
- Trust documentation (if owned by a trust): A certified copy of the trust agreement or a certificate of trust and proof that the trustee had authority to act (or a recorded deed transferring title out of the trust). A certificate of trust or notarized trustee affidavit is commonly requested instead of full trust documents.
- Entity documentation (corporation, LLC): Articles of organization or incorporation, a current certificate of status from Florida Division of Corporations (Sunbiz), and a corporate resolution or officer affidavit authorizing the individual making the claim to act for the entity.
- Affidavit of entitlement / claimant form: Most clerks require a sworn claimant affidavit or a formal claim form describing the claimant’s relationship to the title and attaching supporting documents. The affidavit must typically be notarized.
- Name‑change or ID documentation: If the claimant’s name on the title differs from the name used today, provide certified name‑change documents (marriage certificate, court order) and government photo ID to verify identity.
- Power of attorney (if someone files for another): A valid, notarized power of attorney that specifically authorizes the agent to file claims and receive funds, plus identity documents for both the agent and the principal. Some clerks will not accept a general POA—check local requirements.
- Assignment or payoff information (for lienholders): A recorded assignment of a mortgage, payoff statement, or lien release proving the claimant’s priority or balance due—useful for junior lienholders claiming surplus proceeds.
- Tax records, utility bills, and closing statements (supplemental proof): These can support a claim of possession, payment, or interest in the property when the chain of title is unclear.
- W‑9 and payment information: If the clerk releases funds to the claimant, the clerk will often require a completed IRS Form W‑9 (or W‑8 for certain foreign entities) before issuing payment. Include instructions for how payment should be delivered (check, wire, etc.) and taxpayer identification.
How to assemble and present proof
1. Start with a completed claimant affidavit or the clerk’s claim form. Attach all supporting exhibits in logical order and tab them if submitting a paper packet.
2. Provide certified or certified‑copy documents where the clerk requests them—originals are rarely returned. For vital records (death certificates) provide certified copies.
3. If ownership changed after the foreclosure sale (for instance, the owner conveyed the property prior to sale), provide recorded instruments showing the timing of transfers. The claimant must show entitlement that predates or otherwise overcomes competing claims.
4. If the claimant’s interest is derivative (heir, beneficiary, trustee, agent), provide both the underlying title document and the intermediary document (probate order, trust instrument, POA) that connects the claimant to the titled owner.
Common challenges and how documents address them
- Name mismatches: Use certified name‑change documents, marriage certificates, or an affidavit of identity plus ID.
- Deceased owner: Submit death certificate and probate documents or an affidavit of heirship where probate is not required.
- Entity records out of date: Obtain a current certificate of status from Sunbiz and a corporate resolution authorizing the claim.
- Multiple claimants: Provide chain‑of‑title documents and any agreements among claimants; multiple claimants may require resolution among themselves or court determination.
Because local clerks set forms and steps for claims on sale proceeds, always contact the clerk of court in the county where the foreclosure sale occurred to request the clerk’s surplus funds claim form and their specific checklist. The clerk’s office can confirm whether they require certified copies, original documents, or photocopies and whether they accept email or require in‑person filing.
Statutes and resources: The rules for judicial sales and distribution are in Chapter 45 of the Florida Statutes. Review Chapter 45 and the clerk’s instructions for the county of sale: Florida Statutes, Chapter 45 (Judicial Sales). Also contact the local clerk of court for county‑specific claim forms and requirements.
Disclaimer: This article explains general principles about claiming surplus funds in Florida. It is educational only and does not constitute legal advice. For advice about your situation, consult a licensed Florida attorney or the clerk of court where the sale occurred.
Helpful Hints
- Contact the county clerk of court where the foreclosure sale occurred before you file — ask for the clerk’s surplus claim form and document checklist.
- Start with recorded title documents (deed) and then add the chain of documents that explain any transfers, deaths, or name changes.
- Get certified copies of death certificates, probate orders, and corporate documents when possible—clerks often require certified copies.
- Include a completed IRS Form W‑9 (or W‑8 if foreign) so the clerk can issue payment quickly once your claim is allowed.
- If multiple people may have rights, get a written, notarized agreement among them or be prepared for the court to decide distribution.
- Keep copies of everything you file and ask for a receipt from the clerk showing date/time of your submission.
- If the claim looks complicated (disputed heirs, competing lienholders, unclear transfers), consult a Florida attorney experienced in foreclosure surplus claims or probate to avoid delays or mistakes.
- Time matters: file as soon as you identify an interest. Some procedural or equitable defenses can affect the ability to recover surplus funds if claims sit unasserted for long periods.