Surplus Funds: What Mortgage Servicers Can Do To Recover These Funds

All properties owe real estate taxes to their local government agencies. However, some of the real estate tax collecting agencies may also collect various local delinquencies including utility bills (i.e. water, sewer, and trash) and fire district taxes (primarily northeastern states). These taxes pay for roads, schools, and other government operations to keep communities functioning and safe. When taxes owed are not paid, the property is typically sold at tax deed sale or tax lien certificate sale, allowing the government to collect the delinquencies, incurred costs, fees, etc. Once the property is sold, the jurisdiction deducts what is owed in delinquent taxes, fees, etc., and any funds leftover are deemed Surplus or Excess Funds.

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Typically, surplus funds can be recovered by the owner of the property at the time of the tax sale, by the recorded owner of each security deed associated with the property, or by any other party having a recorded equity interest or claim at the time of the tax sale. However, not all states allow the distribution of surplus funds. For those that do, the amount of surplus funds can vary between a few hundred dollars and hundreds of thousands of dollars. For example, Erie County, New York often has millions of dollars in surplus funds owed to thousands of former property owners after a single tax sale.

In the aftermath of the Great Recession, an entire industry dedicated to recovering surplus funds emerged. Throughout the internet, infomercials promise fast money by collecting surplus funds for other people on a contingency basis. They promise a six-figure income while working out of the comfort of your home and will sell you the tools to do it, which is often just a simple list of specific locations with surplus funds.

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Asset recovery companies were created to collect surplus funds for a percentage of the recovery, like collection agencies. These percentages have ranged anywhere from 12 percent all the way up to an astonishing 75 percent. To protect consumers, several agencies have enacted laws to prevent usurious fees. In 2017, Florida limited the total compensation to 12 percent and requires recovery companies to qualify and register as a “surplus trustee” in order to assist homeowners in claiming surplus funds. Regardless, these companies are still aggressively seeking to recover surplus funds. Another key fact is these asset recovery companies are not attorneys and are often not familiar with the laws concerning how to collect surplus funds. This ineptitude has not only caused delays in the distribution of funds but has also caused agencies to require attorney representation and subsequent court proceedings to collect funds, which adds tremendous time and costs to the process.

Surplus fund distribution varies from state to state, and sometimes even differs by agency, but all are usually managed by the county. In some agencies, these funds are automatically sent to the homeowner on record at the time of the sale. In other states, the process is more complex. Jurisdictions are often not in a hurry to distribute these funds because unclaimed funds are escheated to the state if uncollected. So, what can mortgage servicers do to increase their chances of recovering surplus funds?

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1.) Ensure the proper assignment of mortgage is filed timely and accurately to prove interest in the sold property. If the mortgage was not recorded and the county could not locate the homeowner at the time of the tax sale, the unclaimed funds revert to the state. Having valid proof of interest in the property is the first step to attempt to recover the funds, as the notice of surplus funds is sent to the last recorded mortgagee and to the homeowner at the address of the property sold.

2.) Different states/different rules. A solid working relationship with the jurisdiction can make the process go smoother and reduce the cost of claiming surplus funds. Therefore, it is important to partner with an experienced tax servicer who has relationships with property tax jurisdictions throughout the country and is familiar with surplus fund collection requirements.

3.) If the surplus funds case goes to court, having legal representation that is knowledgeable about the collection of surplus funds is key. This type of law can be simple until there are complications. Attorneys who are trained regarding the collection of surplus funds are crucial because they know the decision makers and they know the legal landscape. Changes in the legal landscape surrounding surplus funds, such as the DLT LIST case in Georgia, argues that surplus funds are personal property and any lien against real property does not attach to surplus funds, despite Georgia law allowing the owner of security deeds to submit claims on surplus funds.

4.) Educating appropriate mortgage servicing team members about surplus funds and the mortgage servicers rights to those surplus funds is important. Surplus funds collected can be applied to the outstanding mortgage balance and reduce the loss of the asset, i.e., the property, to the mortgage servicer

No one wants a property lost at tax sale. However, if it happens, mitigating losses by collecting surplus funds can be effective if done properly. With the emergence of recovery firms and “get rich quick” schemes trying to collect surplus funds, the process has become more complex and competitive. Mortgage servicers need to be diligent in collecting the funds in order to mitigate potential losses.

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