Q: We had an investment property that fell into foreclosure a few years ago. It finally went to auction and was bought by a third party for about $20,000 more than what we owed the lender. Who gets that money? – Liz
A: You do – provided that you did not have a second mortgage or other liens. When your mortgage lender sues you for not paying your mortgage, it is trying to get repaid, and your house gets sold only in an attempt to collect on the loan.
The money generated by the foreclosure sale is used to pay your various household creditors in their order of priority. This means that the money will go to, in order, your first mortgage, community association, second mortgage, any other liens from oldest to newest, and then, finally, you. Any money left over is a surplus.
State law and the final judgment in foreclosure cases will set forth the procedure that claims must be made against the surplus. All interested parties have 60 days from the clerk issuing its certificate of disbursements to file a claim with the court. If more than one claimant steps forward, the judge will have a hearing to decide who gets the money. Make sure to timely file your claim.
Because of recent home price increases, properties are being sold at foreclosure for more than the judgment. People who lose their homes to lenders tend to ignore the whole process, but doing so can sometimes cost them money.
Q: Our lease ends soon and I’m worried that our landlord won’t return the security deposit. We have since found out he has had several judgments against him for not returning security deposits to previous tenants.
We have taken excellent care of the house. Can I use that deposit as my next-to-last month’s rent? We already paid our last month’s rent when we moved in. – James
A: The simple answer is that neither you nor your landlord can use the security deposit as rent, unless you both agree to do so. In Florida – and in many other states – the security deposit must be held in a separate bank account from the rent, and there are specific rules about how the landlord can make a claim against it.
At the end of your lease, the deposit must be returned within 15 days, unless the landlord makes a claim against it for damage, and then he or she must send you a certified letter within 30 days. After you get the letter, you have 15 days to object. If you don’t, the landlord may deduct for the damage and return the rest to you.
If your landlord breaks the rules and just keeps the money – or if you object – the situation will end up in court. If you win the suit, you will get a judgment that you can “execute,” or turn into money, if the landlord does not pay you.
Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He is the chairperson of the Real Estate Section of the Broward County Bar Association and is an adjunct professor for the Nova Southeastern University Paralegal Studies program. Send him questions online or follow him on Twitter @GarySingerLaw. The information and materials in this column are provided for general informational purposes only and are not intended to be legal advice. No attorney-client relationship is formed. Nothing in this column is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction.