Power of Sale or Judicial Procedure? - Posted by JT-IN
Posted by JT-IN on February 08, 2010 at 01:52:33:
Depends whether Power of Sale was used or a strict judicial procedings. The below statute is for POS.
N.Y. RPA. LAW § 1413 : NY Code - Section 1413: Distribution of proceeds of sale.
(d) Upon entry of an order pursuant to section fourteen hundred eighteen of this article providing for same, to the holder of any subordinate mortgage or lien, or to the owner of the equity of redemption or any person or entity having filed a notice of claim against the property, from the then remaining proceeds the amount then due to such person or entity, in the priority thereof, or so much as the then remaining proceeds will pay.
- All surplus moneys arising from the sale after payment of the amounts due under paragraphs (a), (b) and © of subdivision one of this section shall be paid to the county treasurer for the county in which the sale took place by the person conducting the sale within five days after the same shall be received then remaining proceeds will pay…
Sounds like since you didn’t answer the suit and establish your claim, that the Treasurer will have the funds. There is no doubt a procedure for any claimaint to make a claim against said unclaimed funds. Often times the procedings is not complex, and if the mtg was held personally you may not need an Atty to make such a claim; if held by an entity most states require legal representation.
You have likely fallen to an unsecured creditor status and will now bid by all other unsecured creditors for such funds. If you claim was next by lien priority you should be the legal winner of such funds. If there were other claims such as tax liens, et al, then you may be left out of the bidding. What is usually required is when you make a claim you will have to notify everyone who has/had an interest in the property; all lien holders of record by cert mail. They must be notified of your claim and give them an oppty to bid for the funds too. The next highest claim will win the right to funds distribution.
I would contact the Treasurer’s Offc and ask them how you go about making claim to unclaimed overage funds from a foreclosure action. They should be able to help you from there. Good luck and report back to let us know how this turns out, then we will all learn something here by your process.