Detailed Answer — How to file a motion to determine your right to surplus money after a foreclosure (New York)

Short summary: After a foreclosure sale, if the sale proceeds exceed the amounts owed (mortgage, accrued interest, fees, costs, and any properly recorded prior liens), the leftover money (the “surplus” or “overage”) belongs to whoever is legally entitled to it — typically the former owner or certain junior lienholders. In New York you usually ask the court that handled the foreclosure to determine who is entitled to the surplus by filing a motion/application in that foreclosure action. See N.Y. Real Property Actions & Proceedings Law (RPAPL) for rules addressing distributions after foreclosure sale (for example, RPAPL §1371).

Disclaimer: This is general information, not legal advice. I am not a lawyer. For legal advice about your specific situation, consult an attorney licensed in New York.

Who can file a motion to claim the surplus?

• The former owner of the property (or the owner’s personal representative if the owner is deceased).
• Junior lienholders or judgment creditors with recorded interests that may have priority to the surplus.
• Other parties with a legally recognized claim (e.g., assignees).

Where and when to file

File the motion in the same foreclosure action where the judgment of foreclosure and sale was entered and the sale took place. If you don’t know the case number or county, locate the foreclosure judgment and sale paperwork through the county clerk or the bank/servicer involved. File promptly — delays make proof harder and can create procedural problems.

Statute to know

Key New York statute addressing distribution after a foreclosure sale: RPAPL §1371 (disposition of funds after sale). You can read the statute here: N.Y. Real Property Actions & Proceedings Law §1371.

Step-by-step: How to prepare and file the motion

1. Confirm that surplus exists and where it is held.

   Obtain the foreclosure sale results and accounting from the plaintiff (lender or trustee) or the sheriff/auction officer. The foreclosure papers should show the sale amount, amounts paid to creditors, and remaining funds (if any). In many cases the surplus will be in the county clerk’s registry, the referee’s or trustee’s hands, or held by the plaintiff pending distribution.

2. Gather required documents.
   • Foreclosure case caption and index/case number, judgment of foreclosure and sale, referee’s report, and sale receipts.
   • Proof of identity for the claimant (government ID).
   • Proof of ownership or legal right: deed, title documents, or recorded interest showing you as owner.
   • If the former owner is deceased: death certificate and letters testamentary or letters of administration (or other court document proving you are the personal representative). If you are claiming as an heir without a personal representative, be prepared to explain authority to collect funds (probate or small estate procedures may be required).
   • Affidavit or sworn statement setting out your claim to the surplus, the amounts involved, and the basis of your priority over other claimants.
   • Any documents supporting elder claims, assignments, releases, or junior liens that affect entitlement.
3. Draft the motion or an order to show cause.

   Most attorneys file a motion or an order to show cause seeking an order directing the court to determine who is entitled to the surplus funds and to direct distribution. The motion should include a proposed order. Typical components:

   • A concise statement of facts (sale date, sale amount, amounts paid, and surplus amount).
   • Legal grounds for your claim to the surplus and any statutory authority cited (e.g., RPAPL).
   • A proposed distribution schedule and request that the court issue an order directing payment to the rightful party.
4. Serve notice on all interested parties.

   Serve the motion papers and proposed order on: the foreclosure plaintiff (lender/trustee), any known junior lienholders, the referee or sale officer, and any party of record in the foreclosure action. Proper service is critical — the court will require notice to let other claimants object.

5. File proof of service and supporting affidavits.

   File the motion, supporting affidavits, proof of service, and a proposed order with the clerk of the court where the foreclosure was heard. Pay any filing fees required by the court.

6. Attend the motion hearing.

   Be ready to present proof of entitlement. The court may accept stipulations from other parties, hear objections, or order further documentary proof (e.g., a hearing to determine heirship if the owner died intestate).

7. Obtain the court order and collect funds.

   If the court rules in your favor, it will enter an order directing the disbursing officer (referee, county clerk, or plaintiff) to pay the surplus to the party awarded. Follow any administrative steps the clerk or disbursing officer requires to obtain the funds (identification, release forms, or receipts).

Special situations: deceased owner, competing claims, small estates

• Deceased owner: If your mom has passed away, you generally need letters testamentary or letters of administration issued by the Surrogate’s Court to collect assets that belong to the decedent’s estate. In limited circumstances and for small estate amounts, New York has streamlined procedures — an attorney can advise if those apply.
• Multiple claimants: If junior lienholders or others claim the same surplus, the court will decide priority. You must notify all known claimants and be prepared to litigate entitlement or reach a settlement.
• No estate administration: If the decedent’s estate has not opened a probate or administration, the court might require you to open estate proceedings or otherwise show authority to collect the funds.

Practical tips and common pitfalls

• Start quickly. Even if the sale happened months ago, you should act promptly — funds may be moved or claim priorities can become harder to prove.
• Get certified copies of death certificate and probate letters if the owner has died. Without them, the court may not release funds to heirs.
• Carefully check the foreclosure record for other recorded liens. A recorded judgment or lien may have priority over owner claims to surplus.
• Verify where the surplus is physically held (referee, county clerk, or plaintiff). That determines who the court will direct to pay the funds.
• If you plan to represent yourself (pro se), review the local court’s motion rules and filing requirements; forms and procedures vary by county.
• Consider hiring an attorney if claims compete, the amount is substantial, or the estate and probate issues are complex.

What to expect at the hearing and after

The court will examine documentary evidence and hear objections. Judges often prefer a clear chain of title, probate letters (if owner died), and properly served notice. If the court awards the surplus, it will issue an order directing the disbursing party to pay. If the court denies your claim, you may have an appeal right but must follow applicable appellate rules and deadlines.

When to consult an attorney

• There are competing claimants or complex priority issues.
• The owner was deceased and no probate or administration exists.
• The court requires contested hearings to determine heirship or priority.
• You are unsure of the procedural rules in the county where the foreclosure occurred.

Helpful Hints

• Collect the foreclosure judgment and sale paperwork first — they contain the sale accounting you need.
• If your mom passed away, obtain certified copies of the death certificate and any will and open probate or obtain letters if necessary.
• Ask the county clerk which docket the foreclosure is on and whether the surplus is in the clerk’s registry or held by a referee — this determines the payor.
• When preparing affidavits, state facts clearly: relationship to owner, chain of title, why you claim the surplus, and attach supporting documents.
• Keep a calendar of service and filing dates; improper service can delay or defeat your motion.
• Even if the amount seems small, a short attorney consultation can clarify whether you qualify for simplified procedures.

Further reading: review RPAPL §1371 for statutory guidance on distributions after sale: https://www.nysenate.gov/legislation/laws/RPAPL/1371.

Remember: This post explains the usual steps under New York law but is not legal advice for your situation. For help tailored to your facts — especially when the decedent, probate, or competing claims are involved — consult a New York attorney or the Surrogate’s Court in the county where your mom lived.