Short answer

After a foreclosure sale, any money left over after paying the confirmed judgment and sale costs is called surplus or overage. In New Mexico, a person who believes they are entitled to that surplus must ask the district court that handled the foreclosure to determine who gets the funds. If the former owner (your mom) is deceased, the surplus is generally an asset of her estate and must be claimed through probate or the court’s surplus-distribution process by someone with authority (the personal representative or an heir with proper paperwork).

What you need to know first

• Identify the court and case number for the foreclosure (county district court where the foreclosure judgement was entered).
• Find out whether the foreclosure was a judicial sale and whether the sale was confirmed by the court. Courts usually issue an order confirming the sale and directing distribution of sale proceeds.
• Confirm whether a surplus actually exists (sale proceeds minus all liens, fees, costs, and judgments equals surplus).
• If the property owner is deceased, determine whether a probate estate has been opened and who is the personal representative (executor/administrator) or whether small-estate procedures might apply.

Step-by-step: How to file a motion to determine your right to surplus funds in New Mexico

1. Obtain court records and sale accounting.

   Get a copy of the foreclosure judgment, the order confirming the sale (if any), the sheriff’s or trustee’s sale accounting, and the clerk’s record showing where the sale funds were deposited. You can get these from the district court clerk’s office where the foreclosure case was filed.

2. Confirm who holds the funds.

   After a foreclosure sale, the court or clerk normally holds any surplus funds or directs the sheriff/trustee to deposit them with the clerk. Ask the clerk where the money is held and whether anyone has filed a claim to it.

3. Decide the correct procedural vehicle.

   Most commonly you will file a written motion or application with the district court in the foreclosure case titled something like “Motion (or Application) to Determine Right to Surplus Funds” or “Application for Distribution of Surplus Proceeds.” The exact title is not critical; the filing should clearly ask the court to determine who is entitled to the surplus and to order distribution to you (or to the estate).

4. Prepare the motion and supporting documents.

   Your motion should include:

   • Your name and contact information and your relationship to the former owner (e.g., daughter, heir, personal representative).
   • The foreclosure case number, court name, and short case background (judgment date, sale date, sale price).
   • How much surplus you believe exists (attach the sale accounting or clerk’s statement).
   • Why you have a right to the surplus (owner, heir, personal representative, or holder of a superior claim). Attach documents such as a death certificate, will, letters testamentary or letters of administration, heirship affidavit, or other proof of title/relationship.
   • A proposed order asking the court to enter a judgment directing distribution of the surplus to you (or to the estate) and specifying how the court should pay it (check to personal representative, distribution to heirs, etc.).
5. Serve notice on all interested parties.

   Give notice of your motion to all parties who might have claims against the surplus: the mortgagee or beneficiary, any junior lienholders shown in the foreclosure, the foreclosed owner’s known heirs or personal representative, and any attorney of record. The court may require service by mail or personal service and a certificate of service filed with the court.

6. File the motion and pay filing fees.

   File your motion and attachments with the district court clerk. There may be a filing fee. If you cannot afford the fee, you can ask the court to waive it using an affidavit of indigency if eligible.

7. Request a hearing (if required) and prepare evidence.

   The court may set a hearing if someone contests your claim or if the judge prefers to resolve distribution after motions practice. At the hearing bring originals or certified copies of your proof (death certificate, letters testamentary, lien releases, deed, etc.).

8. If the owner is deceased: use probate or small‑estate options as needed.

   Because surplus funds are an estate asset, the court may require that a personal representative be appointed in probate before the clerk releases funds. If there is already an appointed personal representative, that person should file the application. If no probate is open, consider whether New Mexico’s small estate procedures apply (if the total estate qualifies). Check with the probate clerk or an attorney if unsure.

9. Respond to contests and obtain an order.

   If other parties file competing claims, the court will resolve ownership based on the evidence. If the court rules in your favor, it will enter an order directing the clerk to release the funds to the person or estate named in the order. Follow the clerk’s instruction to collect the check or arrange delivery.

Documents you will likely need

• Copy of foreclosure judgment and order confirming sale (if any)
• A sheriff’s or trustee’s sale accounting showing the sale price and distributions
• Death certificate (if owner is deceased)
• Letters testamentary or letters of administration (if a personal representative exists)
• Affidavit of heirship, certified will, or probate documents if you claim as an heir
• ID showing your identity and relationship to the decedent
• Any documents showing liens, releases, or other superior claims

Helpful Hints

• Start at the court clerk’s office. Ask the clerk how the surplus is being held and whether any claims are on file.
• Act quickly. Other claimants (creditors, lienholders, heirs) may file competing claims.
• If the former owner died, open a probate (or confirm an existing probate) early. Courts often will not release estate assets without estate authority.
• Keep careful records of service. Courts require proof you notified all potentially interested parties.
• If you are unsure how to proceed, consult a New Mexico attorney experienced in probate or real property foreclosure practice. An attorney can draft the motion, check title issues, and handle contested hearings.
• Use forms where available. Some district court websites and the New Mexico Courts self‑help pages offer sample forms and instructions.
• Expect possible delays if the distribution involves multiple claimants or complex title problems.

Where to look for official New Mexico resources

• New Mexico Courts (general information, self-help, and probate guidance): https://www.nmcourts.gov
• New Mexico Legislature — statutes and searchable code: https://www.nmlegis.gov
• Contact the district court clerk in the county where the foreclosure case was filed for local practice rules and filing requirements.