Excess Sale Proceeds After A Trustee’s Sale, by Diane L. Drain
What are Excess Sale Proceeds?
Once the trustee’s sale has been completed there 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. 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, $30.00 payable to the Treasurer (of Assessor) and a W-9.
There are many vultures praying on those who have lost their homes through a trustee’s sale or foreclosure. These vultures are running scams to take most, sometimes all, of the equity which should be paid to the homeowners. There is a lot of equity or “excess sale proceeds” today – given the value of the houses in the 2005-2006 market. The law Arizona Revised Statutes – 33-812. specifically limits what these vultures are permitted to do (charges, etc), yet most are blatantly ignoring the law and robbing the homeowners of thousands of dollars in hard-earned equity in their home. For instance – ARS 33-812 specifically limits the right to charge the homeowner more than $2,500.00 for “recovery of or assistance in the recovery of excess proceeds”, absent unusual circumstances that the judge must approve. Yet, I have received numerous reports of changes in excess of 50% of the entire amount – with no limit on the maximum charges. Their actions evidence a complete refusal to honor the limits set by law. These folks are prohibited from obtaining a binding contact for at least 30 days after the trustee’s sale, yet they are normally on the doorstep the day after the sale.
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.
What is the Arizona law limiting fees to recover the excess fees? Arizona Revised Statutes: 33-812(o) 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 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.
What a travesty!
One such example is: 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 his 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.
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: http://www.supreme.state.az.us/dc/2010_Scanned/DCReports/Warrick_DCrpt_11310.pdf and http://www.supreme.state.az.us/dc/2010_Scanned/JOandOrders/WarrickJO040610.pdf. 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.
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.