November 18, 2019

Bill 1361 Eliminated the Need for Surplus Trustees

Gail Gates, The Mother of Foreclosures wants you to know... Bill 1361 - Is Not helping Homeowners

Many people believe there is no equity in a foreclosure property. Often times there is. If a property is purchased at the foreclosure auction by a third party(investor), paying more than the bank is owed the overage is referred to as surplus funds. In the State of Florida prior to July 2019 surplus trustee’s made money facilitating the release of these funds for the homeowner for 2% at the time they are appointed trustee and 10% once the trustee locates and disburses the funds to the owner. This was another branch of the foreclosure business and a great service to the homeowners who for the most part didn’t know they had any money coming to them.  If they didn’t know they were owed money it stands to reason they would not know how to obtain it. That’s when a surplus trustee became vital.  A new bill was signed into law by Governor Scott on March 21, 2019 stating after July of 2019 surplus funds from a foreclosure sale must be sent to the Department of Financial Services, Division of Unclaimed property one year after the date of the foreclosure sale if the funds have not been disbursed by court order. Prior to House Bill 1361 subordinate lien holders had 60 days to file a claim after the foreclosure sale.  Bill 1361 changed the 60 days to one year before the clerk can declare the funds unclaimed. This helps lien holders but not homeowners. If the filing attorney does a proper title search subordinate lien holders are named and served as procedure during the foreclosure process. The United States Department of Treasury IRS, second mortgage holders, Homeowners Associations, etc. are examples of commonly named lien holders in a foreclosure complaint. This process ensures lien holders are informed when the first mortgage is in default and the lis pendens is filed beginning the foreclosure process. Entities with interest in a property due to a lien know more than the homeowners about the process because it is part of business as usual. Generally that is not the case for the homeowner.  I have worked in the foreclosure information business since 1991. One of the things that I love about this business is, it is a win win.  The professionals, investors, Realtors, Mortgage Brokers, etc. make money but in doing so they also help the owners along the way.  Knowing homeowners are helped by these business people who advise them of their rights and detail the many options available to them is in large part why many of us do what we do.  Bill 1361eliminated one aspect of the business that was (1)profitable for people offering to assist homeowners (2) awarded homeowners the money that was due to them. Now homeowners are on their own to find out if they are due any money and forces them to wait a year before the money is declared unclaimed.  After all is said and done, when the auction is over and the homeowner is evicted from their home there was some solace knowing people in the business were approaching them to explain they had money coming to them and then filing the proper forms to have the funds released to them. Now that isn’t happening. The new law made provisions for the owner of record to request an evidentiary hearing to determine if they are entitled to the funds. That might work in a perfect world where everyone knows and understands the statutes and laws in a business they know nothing about.  There is an old saying, “You don’t know what you don’t know.”  That being true, how can we expect people to ask questions about something they know nothing about?   

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