Foreclosure Sale Date or Date of Issuance of the Certificate of Sale— Which Comes First for Purposes of Starting the Clock to Claim Surplus Funds From a Foreclosure Sale?
If you are an inferior lien holder who is named as a defendant in a mortgage foreclosure suit, there is a 60-day period in which you must file a claim to receive any excess funds that may be available from the foreclosure sale. The question is, when does that 60-day period begin to run?
The Second District Court of Appeal just issued its Opinion in Bank of New York v. Glenville where the Court held that the clear mandate of Section 45.031(7)(b), Florida Statutes, dictates that the sixty (60) days to claim entitlement to foreclosure surplus funds as a junior lien holder begins from the date that the actual foreclosure sale takes place and not from the date the Clerk issues the actual Certificate of Sale.
Accordingly, it is imperative to monitor a senior lien foreclosure action and act timely based upon the actual date of the foreclosure sale, and not wait for the Clerk to issue the Certificate of Sale which may not take place the same day of the foreclosure sale.
At Gibbons Neuman, our Senior Lien Monitoring Department within the Firm’s Creditors’ Rights Practice Group is prepared to assist any of our institutional and investor lender clients in monitoring and recovering foreclosure surplus funds from foreclosure sales.