In short: A third-position lender got about $176,000 in foreclosure surplus at an unopposed hearing, using a defective notice and a motion that misstated lien priority. The Third DCA reversed on March 20, 2013, holding the court should have vacated the payout and decided priorities first, including whether the money must be returned.
The Facts
After a Miami-Dade foreclosure sale, about $176,000 in surplus remained. Wells Fargo held the second mortgage and Aristo Mortgage, LLC held the third. Both filed motions claiming the surplus. The pleadings showed Wells Fargo’s lien was senior, and nobody disputed that. Aristo’s motion nonetheless claimed rights superior to all others.
Aristo’s notice of hearing listed an incorrect hearing date and did not name any individual lawyer at the firm representing Wells Fargo. Aristo’s counsel appeared; no one for Wells Fargo did. The trial court granted Aristo’s motion and ordered the surplus paid out, with no finding about anyone’s priority. Wells Fargo moved to vacate under Florida Rule of Civil Procedure 1.540, and the trial court denied that motion.
The Decision
The Third DCA (Judge Salter writing, with Judges Lagoa and Logue) reversed. It held the trial court was led into error by a motion that misstated undisputed priorities and a notice that was facially wrong about the hearing date. Following its earlier decision in Golindano v. Wells Fargo Bank, 913 So. 2d 614 (Fla. 3d DCA 2005), the court said surplus cannot be disbursed without first determining priorities and amounts owed to junior lienholders.
On remand, the trial court had to vacate the disbursement order, decide each party’s priority and claim to the surplus, and consider Wells Fargo’s demand that Aristo disgorge the money if Aristo could not prove its allegations. The court also remarked that a lawyer appearing unopposed on an obviously contested six-figure matter might first call opposing counsel.
The Law
Florida’s surplus statute, section 45.032, presumes the owner of record when the lis pendens was filed is entitled to the surplus, but only after subordinate lienholders who timely file claims are paid. Under the current version of section 45.032(3)(b), if anyone other than the owner claims the surplus, the court must set an evidentiary hearing to decide entitlement. Liens are paid in order of priority, so a second mortgage is satisfied before a third.
Relief from an order entered on defective notice runs through Florida Rule of Civil Procedure 1.540(b), which covers mistake, misrepresentation, and void orders. A party that never got proper notice of a hearing has a strong basis to vacate what happened at it.
Current law (2026): Section 45.032 was amended in 2018 (ch. 2018-71) after this decision; the current version expressly requires an evidentiary hearing when anyone other than the owner of record claims the surplus (s. 45.032(3)(b)) and moves unclaimed surplus to the state after one year (s. 45.032(3)(c)). Confirmed on flsenate.gov 2026 Statutes.
Lessons
- Surplus goes by lien priority; a junior lienholder cannot jump the line by filing first or showing up alone.
- Read every notice of hearing for the correct date and service; a defective notice can undo the order entered at it.
- If you claim surplus, track the docket and the competing motions until the money is actually disbursed.
- Money paid out wrongly can be ordered returned; disgorgement is on the table.
Source: Wells Fargo Bank, N.A. v. Aristo Mortgage, LLC, No. 3D12-3012 — Fla. 3d DCA (March 20, 2013).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Junior Lender Took the $176K Surplus — Hearing Required? | Wells Fargo v. Aristo, 3D12-3012
Go Deeper
- The Florida Foreclosure Sale: Timing, Redemption, Surplus Funds, and When You Have to Move
- Foreclosure Surplus Funds: The Estate or the Remainderman? (Rivera v. Estate of Thomas)
- The Florida Foreclosure Process, Step by Step
Frequently Asked Questions
Who gets the surplus after a Florida foreclosure sale?
Under section 45.032, subordinate lienholders who timely file claims are paid first, in order of priority, and the owner of record when the lis pendens was filed is presumed entitled to what remains. When anyone besides the owner claims the money, the court must hold an evidentiary hearing to decide entitlement.
Can a junior lienholder take foreclosure surplus ahead of a senior lienholder?
Not properly. Surplus is distributed by priority, so a second mortgage is paid before a third. In Wells Fargo v. Aristo, the Third DCA reversed an order that gave the surplus to a third mortgagee without first deciding priority over the second mortgagee.
What if I never got notice of the surplus hearing?
You can move to vacate the resulting order under Florida Rule of Civil Procedure 1.540. In Aristo, a notice with the wrong hearing date was a key reason the appellate court said the order should have been vacated. Act quickly, before the clerk disburses or the money disappears.
Is there a deadline to claim foreclosure surplus in Florida?
Under section 45.032(3)(c), surplus still with the clerk one year after the sale is presumed unclaimed and is sent to the state’s unclaimed property program unless a court proceeding over it is pending. Lienholders and owners should file claims well before then.
Talk to a Florida foreclosure defense lawyer
Weidner Law, P.A. has defended Florida homeowners in foreclosure and foreclosure appeals for more than 25 years. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
