Court: District Court of Appeal of Florida; August 1, 2007; Florida; State Appellate Court
National Equity Recovery Services, Inc. (NERS) filed a petition for a writ of certiorari after the trial court entered an order granting surplus funds from a foreclosure sale to Frances Williams without holding an evidentiary hearing. The case originated from a foreclosure judgment favoring Truman Capital Mortgage Loan Trust against Williams, whose property was auctioned on April 4, 2007. On April 5, Williams signed an Assignment of Interest Agreement with NERS for any surplus funds remaining after the sale and received a $1,000 payment from NERS. NERS subsequently filed a motion to direct the Clerk to release the surplus funds, which amounted to $43,492.45, as reflected in the Clerk's Certificate of Disbursements issued on April 17, 2007. However, on April 23, Williams filed a claim for the surplus and stated she had not assigned her rights to those funds. The trial court then issued an order granting the surplus to Williams, prompting NERS to contest the decision. Florida Statutes Section 45.032 establishes that the owner of record is presumed entitled to surplus funds post-foreclosure unless proven otherwise at a hearing, where the burden of proof lies with the assignee. The court's failure to conduct an evidentiary hearing before disbursing the surplus to Williams constituted an error, as the statute mandates such a hearing when claims to the surplus are disputed.
The court must evaluate the factors outlined in section 45.033 when assessing claims to surplus funds made by parties other than subordinate lienholders or the owner of record. Specifically, within 60 days following the clerk's issuance of a certificate of disbursements, any claimant, such as an assignee, is entitled to an evidentiary hearing to establish their right to the surplus funds. The statute explicitly requires the court to conduct this hearing and consider the relevant factors. In this case, NERS submitted a claim of interest within the designated 60-day period, asserting entitlement to the surplus funds, which necessitated an evidentiary hearing before any disbursement to Williams. The trial court's failure to hold this hearing before awarding the surplus to Williams resulted in the reversal of its order, and the case is remanded for an evidentiary hearing in alignment with sections 45.032-.033 of the Florida Statutes. If NERS successfully demonstrates its entitlement during the hearing, the court will require Williams to return the appropriate funds to the court registry. The order is treated as final as it conclusively addresses the disposition of the funds in question. Additionally, the Assignment Agreement between Williams and NERS indicates that approximately $44,000 is held in the court registry, with an advance payment of $1,000 to Williams and a profit-sharing arrangement for recovered funds. There is also noted confusion regarding the discrepancy between the amount Williams received and the surplus funds documented in the Clerk's Certificate of Disbursements.
