How to File a Motion to Determine Right to Surplus Funds After Foreclosure in Ohio

Disclaimer: This is general information, not legal advice. I am not a lawyer. For advice about your specific case, consult a licensed Ohio attorney.

FAQ: How do I file a motion to determine my right to surplus funds after my mom’s property was foreclosed in Ohio?

Short answer

If a foreclosure sale produced more money than was needed to pay the senior liens and sale costs, those extra funds (the “surplus”) are held by the sheriff. To claim them in Ohio you usually must: locate the sheriffs return and sale paperwork, identify all parties with potential claims, prepare and file a Motion to Determine Right to Surplus Proceeds in the court that handled the foreclosure, serve all interested parties, and appear for any hearing. The court will decide priority and order the sheriff to distribute any funds.

Why this happens and where the law lives

When a foreclosure sale brings in more than needed to satisfy the judgment, the remaining money does not automatically go to the former owner. The sheriff or clerk typically holds the surplus until a court determines who is entitled to it. Ohio law governing execution and sales by sheriffs is found in the Ohio Revised Code, Chapter 2329 (Execution). See Ohio Rev. Code Chapter 2329: https://codes.ohio.gov/ohio-revised-code/chapter-2329.

Detailed answer — step-by-step process under Ohio practice

1. Get the sale and sheriffs paperwork.

   Obtain a copy of the sheriffs sale report, the sheriffs return of sale, the sale transcript (if any), and the sheriffs ledger showing the gross sale amount, payout amounts, sale costs, and the surplus. You can request these from the county sheriffs office and from the clerk of the court where the foreclosure case was handled.

2. Identify potential claimants and priority.

   Typical claimants include: the foreclosing mortgagee (to the extent of the judgment), other lienholders (tax liens, junior mortgages, judgment creditors), the homeowner (or the homeowners estate/heirs), and possibly the purchaser. Generally, proceeds pay senior liens, costs, and then junior liens. Any remaining surplus often belongs to the former owner (or that persons estate/heirs), but competing claims can alter distribution. The court will decide priorities under applicable law.

3. Confirm any deadlines and local rules.

   Deadlines and procedures may be affected by local court rules and by the facts of the case (for example, pending bankruptcy by a party can freeze distribution). File as soon as you can—delaying can jeopardize your position. Check the local rules of the county Common Pleas Court and the clerks filing requirements.

4. Prepare the Motion to Determine Right to Surplus Proceeds.

   The motion should include: case number and caption; a short statement of facts (who owned the property, date of sale, sale price, surplus amount); your relationship to the former owner (owner, heir, personal representative); the relief requested (that the court declare you entitled to all or part of the surplus and order disbursement); and any supporting documentation. Attach a proposed order for the judge and relevant exhibits (sheriffs return, death certificate if owner deceased, letters testamentary or letters of administration, deed, payoff statements, copy of the mortgage and judgments, affidavits of heirship if applicable).

5. File the motion in the foreclosure court.

   File the motion with the clerk of the court that entered the foreclosure judgment (usually the county Common Pleas Court). Include the proposed order and copies of all exhibits. Pay any filing fees required by the clerk.

6. Serve all interested parties.

   Ohio court rules require service of motions on all parties who might claim the surplus: the foreclosing mortgagee, any known junior lienholders, the purchaser at sale, and the county sheriff. Use the service method required by the court (typically certified mail and/or personal service). Keep proof of service.

7. Attend the hearing and present evidence.

   The court may set a hearing. Be prepared to explain why you are entitled to the funds and to present proof: ownership records, probate documents if the owner died (death certificate, letters testamentary/administration), affidavits of heirship, payoff statements from lienholders, and any other documents proving priority. The court will rule on competing claims and order distribution accordingly.

8. If the court awards funds, the sheriff disburses them.

   After the judge signs an order, the sheriff will disburse the surplus according to the order. There may be administrative steps (an additional claim form with the sheriff, an indemnity bond, or identity verification) before funds are released.

Special situations you should know

• Deceased former owner: If your mom is deceased, you will likely need probate documents (letters testamentary or letters of administration) or a court-approved affidavit of heirship to show your authority to claim the funds.
• Bankruptcy: If any claimant (including the homeowner) filed bankruptcy before distribution, the bankruptcy estate may have a claim. Bankruptcy can delay or block distribution.
• Tax liens and government claims: County tax liens or other government claims may take priority and reduce the surplus available to heirs.
• Competing lienholders: If junior lienholders exist, they may also file claims. The court will sort priorities and distribute accordingly.

Documents you will commonly need

• Sheriffs return of sale and sale ledger showing the surplus
• Foreclosure case judgment and sale order
• Proof of ownership (deed, title search)
• Death certificate (if owner deceased)
• Letters testamentary or letters of administration (if estate representative)
• Affidavit of heirship (when appropriate)
• Payoff statements or lien records for any creditors claiming priority
• Any written communications with the sheriff or purchaser

Helpful hints

• Act quickly. File your motion and gather documents as soon as you learn a surplus exists.
• Start with the sheriffs office and the foreclosure court clerk; they can tell you the exact surplus amount and provide sale paperwork.
• Obtain certified copies of probate documents. Courts and the sheriff commonly require certified copies, not photocopies.
• Check county Common Pleas local rules for required forms and service methods.
• If the former owner is deceased and no estate administration was opened, consider opening a short-form probate (or obtaining an affidavit of heirship) so a court can recognize heirship rights.
• Provide clear, organized exhibits to the judge: a well-documented motion increases the chances of a prompt ruling.
• Contact the county tax office to confirm whether tax liens exist; unpaid taxes can absorb surplus funds.
• If multiple people claim the same funds, expect contested hearings and possibly a need for counsel.
• When in doubt, consult an Ohio attorney experienced in foreclosures and post-sale surplus proceedings. An attorney can review title records, assess competing claims, and draft the motion and proposed order.

Where to look in Ohio law

Rules about sheriff sales and execution procedures are in the Ohio Revised Code, Chapter 2329 (Execution). For the exact statutory language and related sections, see: https://codes.ohio.gov/ohio-revised-code/chapter-2329. County court local rules and the clerks office will have filing procedures and form requirements for your jurisdiction.

When to get a lawyer

Consider hiring a lawyer if: competing claimants appear; the amount of money is substantial; a probate or estate administration is required; bankruptcy issues exist; or you prefer help preparing filings, presenting at a court hearing, or negotiating with lienholders. An attorney can also advise whether a settlement with other claimants is possible to avoid litigation.

If you want, I can list the documents to collect and provide a plain-language checklist you can use at the clerk and sheriffs offices.