Excess sale proceeds are those funds left after a lender foreclosed on a home/property. The laws of each state dictate the process to claim excess sale proceeds.
WARNING TO THE WISE: Never do a short sale, deed in lieu of foreclosure, allow a trustee’s sale, or a foreclosure to go forward without first obtaining both legal and tax advice. You cannot undo serious mistakes once the process is completed.
The law of the state where the property is located controls the foreclosure or trustee sale process. The links to this page deal solely with Arizona law as governing Arizona real property.
Please Note:
The information contained in this web site, article or link may be outdated, incorrect or not applicable; it is your obligation to confirm the accuracy.
It is very important that you obtain legal advice from an experienced foreclosure or bankruptcy attorney regarding your particular situation. Consultation before you take action will certainly cost you less than it will cost to fix your unintentional errors.
The information in this web site is not intended to constitute legal advice or to create an attorney-client relationship.
IMPORTANT: This firm makes NO representations as to the accuracy or current status of any law, case, article or publication cited herein or linked to.
Once the trustee’s sale has been completed there may be monies left over because the lender who foreclosed has been paid in full. These extra monies are called “excess sales proceeds”. All junior lienholders and the property owner at the time the property was sold have a right to apply for those funds. The Trustee conducting the Trustee’s Sale will deposit (in most cases) the funds with the County Treasurer or Assessor, a complaint will be filed by the Trustee and served on everyone listed on the title policy.
Diane L. Drain, lawyer, consumer advocate, retired law professor, wife and mother
At that point the junior lienholders and/or the old property owner can file an application with the Court. There are notice requirements and most likely the court will have a hearing on the distribution of any monies. See Arizona Revised Statutes – 33-812. In order of obtain the funds the applicant must have a signed, certified copy of the final Order from the Court, plus a fee payable to the Treasurer (of Assessor) and a signed W-9.
These vultures are running scams to take most, sometimes all, of the equity which should be paid to the homeowners. Depending on the market there may be a lot of equity or “excess sale proceeds”.
The law Arizona Revised Statutes – 33-812. A claimant may enter into an agreement with a third party to pay for the recovery of or for assistance in the recovery of excess proceeds on deposit with the county treasurer. The agreement shall be in writing, signed by the claimant, and the claimant’s signature shall be acknowledged by a notary public or other person authorized to accept an acknowledgment pursuant to section A.R.S 33-511. Any agreement entered into before the expiration of thirty days after the date the trustee’s sale was held, but not including the date of the sale, is void and unenforceable. Any fee or payment provided for in an agreement shall be reasonable. The fee or payment shall be presumed to be unreasonable and the obligation to pay the fee or payment is unenforceable if the fee or payment agreed on exceeds two thousand five hundred dollars excluding attorney fees and the costs of filing the claim and providing the statutorily required notices. Any person seeking a fee or payment exceeding two thousand five hundred dollars may apply to the court for additional compensation but the person has the burden of establishing that the additional compensation is reasonable under the circumstances. This subsection does not preclude a claimant from contesting the reasonableness of any fee or payment that is provided for in an agreement for the recovery of or for assistance in the recovery of excess proceeds.
The requirement to obtain these excess sale proceeds is that you must actually own the home on the date of the trustee’s sale. These vultures know this requirement and approach the homeowner the day or two before the sale offering to buy the home for a small amount. They completely fail to tell the homeowner that there will most like be several thousand dollars available after the sale is complete, but that only the person who owns the home on the day of the trustee’s sale can request these funds. Know your rights and talk to a competent attorney who is experienced and in good standing with the State Bar of Arizona. Ask other experienced attorneys for referrals.
On or about December 4, 2005 at 4:30 pm R. G. approached one of my clients, indicating that my client may have a right to $90,399.05 in equity after his home had been sold in a trustee’s sale. Mr. G’s business card indicates that he is a case specialist with The Alliant Group, Equity Division. The flyer my client received was from Reach for My Home, Inc, a Non-Profit Organization, and includes Mr. G’s name and number as the only contact information. According to my client, Mr. Garrett showed him a thick booklet from Reach for My Home detailing how Reach could help my client. At this time my client had lost everything, his home, his business, and his dignity. His only place to move was a trailer on his sister’s property. Mr. G offered a “deal”. If my client signed a contract with them he would receive approximately $40K in about 3-4 weeks, with no guarantees. This would be 50 percent of the excess sale proceeds, minus a large fee for the Alliant Group. The trustee’s sale had been conducted on November 16, 2005. Had my client agreed to these outrageous terms he would have lost almost $50,0000.
According to the records of the Arizona Corporation Commission: Reach For My Home, Inc. alleged to be a “Non-Profit” organization, is operated by Ingrid Joy Warrick. A quote from Reach Form My Home’s web site: R.E.A.C.H. – Resources, Education and Counseling for Homeowners, Incorporated is the only non-profit organization in Arizona to offer FREE foreclosure information. The Alliant Group, Equity Division and Reach For My Home operate out of the same building – 1530 N. Country Club Dr, Mesa, AZ 85201. Alliant is owned and operated by Rick Rickert and Dennis Reardon.
According to the State Bar of Arizona Ms. Warrick graduated from the University of Detroit Law School, and was admitted to practice law in 2004. According to the Maricopa County Superior Court, from approximately June of 2005 to 2008 Ms. Warrick has filed approximately 45 excess sale proceeds cases, with Alliant taking an assignment in at least 17 of the cases. The funds involved – more than $2.5 million dollars. A search of the Maricopa County Recorder’s office lists approximately 21 Irrevocable Assignment of Full Interest in Excess Proceeds to The Alliant Group. The Assignment states that the original homeowner irrevocably gives up all their interest in the proceeds to the Alliant Group.
UPDATE: December, 2018 – Ingrid-Joy Warrick is suspended from the practice of law for three years after pleading guilty of Facilitation to Commit Money Laundering.
An example: Case number CV 21006-004541 – one homeowner was entitled to $42,779.79, but assigned all his rights to Alliant (recorded 2/24/06 at instrument 2006-0253595). The homeowner allegedly agreed to accept only $16,250.00 out of the $42,779.79. Ms. Warrick’s Contract for Services indicates that “It is further acknowledged that pursuant to Arizona law, the excess proceeds may not be disbursed for twelve (12) months or more.” ARS Section 33-812 controls the time frame – there is no reference to 12 months. Ms. Warrick filed the application for the proceeds on April 21, 2006 and the order approving the funds was signed on August 4, 2006. According to this Contract for Services Ms. Warrick was to receive $2,500.00, plus costs, plus $225 per hour for “answering any objections, court appearances, etc”. Plus, the client agreed to pay a “third Party Provider” an additional fee of $2,500.00 for “any services that the Client may require prior to the release of any excess proceeds”.
October 31, 2011: Ingrid Joy Warrick suspended from the practice of law for 3 months – see the Arizona Supreme Court’s Report and Order regarding her actions: On October 31, 2011 the disciplinary panel of the Arizona Supreme Court signed a report and recommendation denying Ms. Warrick’s request that her license to practice law be reinstated. “Applicant has not met her burden …that she has been rehabilitated and poses no further threat to the public if reinstated to the practice of law.”
According to the State Bar of Arizona’s web site: “By judgment and order dated July 5, 2013, Ingrid-Joy Warrick, Phoenix, was reprimanded and ordered to pay restitution and assessed the costs and expenses of the disciplinary proceeding. Ms. Warrick, a suspended member, possessed a business card, which a member of the public obtained, that identified her as “Ingrid W. Joiya, Esq., Member/Manager” of Elements Therapeutic Dispensary Systems, LLC. (ETD). Ms. Warrick was also ordered to pay restitution in satisfaction of monies owed under the terms of a promissory note that she signed on behalf of ETD.
If the foreclosure sale was held several years ago, it is likely that any excess proceeds that survived the claims of any junior liens (e.g., HOA, 2nd DOT) were “escheated” to the State as “unclaimed property”. If so, those “excess proceeds” would no longer appear on the Treasurer’s list – a far more likely explanation than that the lender just kept the money….
To recover those proceeds, if any, after they have been turned over to the State as unclaimed property, you will have to follow the procedures specified by the unclaimed property division, see http://www.azunclaimed.gov/.
Funds that may be available to a homeowner after a trustee’s sale.Client Reviews and Comments - Excess Sale Proceeds
Diane, Thank you for the good news and for being nothing less than a “stellar” legal representative, a great and understanding sounding board for me during a most difficult and emotional time period, and a most patient person with all my various questions. Say thanks also to Jay for me, he was also of great assistance in the documentation process and in answering procedural process questions regarding the required documentation needed to complete the file for submission and receive the funds.
EXCESS SALE PROCEEDS: P. and I would like to thank you both, especially you Jay, for all the work you did in obtaining our Excess Funds check today. You somehow managed to get this done between January and June and I know how persistent you were. P. and I would like you to know that you can use us a a referral for Excess Funds clients anytime you need to. We were very impressed with what you did and the knowledge you had in getting the job done. It didn’t take me long to realize there are a lot of swindlers out there offering to do the same thing, but when I talked to you back in December, 2013 Diane, and had read your many articles on Excess Funds, I really felt I could trust you. That was one of the best decisions I’ve ever made and we will always be grateful for how you’ve helped us. When you’ve had to walk away from the home you love, being able to secure the Excess Funds through a firm you can trust makes all the difference in the world. Great job!
This was a painless experience. Diane and Jay took complete care of me and all questions were answered in a timely manner. I would highly recommend!
Diane L. Drain, bankruptcy attorney, retired law professor, mentor and community spokesperson.
I love working for people who have financial challenges because my hope is to make a difference in their lives.
Nothing makes me feel better than helping a client, who is barely existing on minimum wage, stop a creditor from garnishing their wages. I have contribute to my client’s peace of mind when I tell a very aggressive collector that they are now permanently stopped from ever contacting my client or trying to collect the debt. Years later it is a joy for me to hear from the same client who has been able to refinance their home or buy a new car. This is truly why I went to law school.
-Diane L. Drain
The banking industry would argue that borrowers choose to accept and use credit cards and take on loans. Borrowers also sometimes choose to obtain money from a loan shark yet the lender is prohibited by law from breaking any bones for late or non-payment. There also is free choice involved when an innocent person discloses personal information to an unscrupulous telemarketer, yet the consumer fraud division of the state attorney general’s office will still protect the individual. Banks, due in large part to their greed, sometimes make flimsy investments, yet they receive, at taxpayer expense, a bail out. Credit card users need a bail out – thus bankruptcy laws are developed.*
Perhaps now you begin to see what I mean when I say that bankruptcy law is fascinating. Read more about Diane.
I have been helping people and small businesses with the challenges of bankruptcy. No one has ever come to me excited about the prospect of filing or being involved in a bankruptcy. This law is designed to assist both groups in protecting their interests in property. Good representation is imperative in making the right decisions and avoiding the pitfalls.
It is very important that debtors understand their rights and use the full value of the law in protecting their property. Bankruptcy can be used to stop foreclosures and trustee sales, stop wage garnishment and the harassment of phone calls to both home and work. In addition, we assist larger companies in bankruptcy, but co-counsel with other very experienced bankruptcy attorneys in order to keep legal fees to a minimum.
We represent large national and individual lenders in situations where a home owner has filed bankruptcy. Normally this bankruptcy has been filed because our firm is in the process of conducting a trustee’s sale or foreclosure of the debtor’s property. The bankruptcy is used to give the debtor time to cure the arrears and/or pay off the debt.
Since 1985 this firm has represented some of the larger national lenders with real property lien enforcement, including trustee sales, foreclosures and forfeitures. We are happy to explain to lenders and borrowers the issues involved in trustee sales, foreclosure or eviction.
When a bankruptcy petition is filed people’s lives can change dramatically for both creditors and debtors. The basic principals behind bankruptcy is to permit the debtors an opportunity to get a fresh start and the creditors are to receive equal distribution of available assets. What a magical theory!
Prior to filing for bankruptcy protection someone’s life is barely held together – they are terrified of answering their own phone; they are embarrassed at work by calls from collection companies and they may be in fear of losing their home or car.After a bankruptcy is filed many of my clients tell me that they can breath easier and sleep through the night. They go to work with their heads held high; they are not afraid to answer their phones and they can actually open their mail without feeling sick.
Many times these creditors have actually been the reason that my clients are forced to file bankruptcy. For instance – a collection company for American Express told my client, an 82-year old widow, that he “had the legal right to bring a moving van to her house and take anything he wanted”.
The horror that our clients have to endure is outrageous.These stories abound with every consumer debtor attorney. Don’t misunderstand me, I am an honorable woman who believes that everyone should pay their debts. But, if those debts have become so burdensome that my clients are choosing between buying required medicine or paying the credit card – then I am thankful they have a Constitutional right to file for bankruptcy protection and get a fresh start.
Sometimes borrowers abuse their creditors.The debtors take on debts that they never intend to pay. The debtors falsify their financial statements. They purposely lie about assets and use every method to mislead old and new creditors. The bankruptcy laws are also designed to help protect the creditors. If a debtor sells assets for less than they are worth, puts debts on credit cards knowing that they cannot pay the debts or fraudulently takes money without the intent of paying – those creditors are not the aggressors; they are the good guys.
These assets are brought back into the bankruptcy estate and distributed evenly among the creditors. Bankruptcy is not a time for injured creditors to be passive. They must actively participate in the process in order to be protected.
Can you now see how the very economy of our country would be directly affected if we were not protected by these well founded principles of bankruptcy? Perhaps this helps you understand how important bankruptcy is to our daily personal, professional and social lives. Every one of us would be directly affected if the bankruptcy laws did not exist.
The paperwork in a bankruptcy is overwhelming. It actually takes more time, energy and will power to put yourself under the close scrutiny of the bankruptcy process than it takes to close the business or go underground as a consumer. Think of it as an area of law that holds our lives together and keeps us functioning as a growing and healthy economy. Give bankruptcy law the credit it deserves and you will find it to be a fascinating field of law.
