How to File a Motion for Surplus Funds After a Foreclosure in West Virginia

Short answer

If a sheriff’s sale brought in more than the debt and sale costs, the extra money (the “surplus”) is distributed to parties with valid claims: the former owner, junior lienholders, or other creditors. To recover that surplus in West Virginia you must: (1) confirm a surplus exists with the sheriff’s office or circuit court clerk, (2) determine who has legal authority to claim the funds (the decedent’s personal representative if your mother is deceased), (3) file a motion or petition in the circuit court that conducted the foreclosure asking the court to determine entitlement and order payment, (4) serve notice on interested parties, attend the hearing, and (5) obtain a court order directing disbursement and collect the funds through the court clerk or sheriff. If your mother is deceased, you most likely must be the executor or administrator to collect estate assets.

Detailed answer — step‑by‑step

1. Confirm whether a surplus exists and get supporting documents

Contact the sheriff’s office that conducted the sale and the circuit court clerk’s office where the foreclosure litigation occurred. Ask for:

• Sale results and account of sale (amount the property sold for and the disbursements made).
• A copy of the sheriff’s deed, and the court’s order approving the sale (if any).
• The foreclosure case file and docket entries.

These documents show whether the sale price exceeded the amount due and what, if any, surplus remains.

2. Figure out who can claim the surplus

Typical priority for surplus distribution:

• Senior lienholders and the party who sought the sale (the plaintiff) are paid first from the sale proceeds.
• Junior lienholders (other mortgages, judgment creditors) may have claims next.
• The former owner (your mother) is often entitled to any remaining surplus after all valid claims are paid.

If your mother has died, the right to claim the surplus usually vests in her estate, and only the personal representative (executor or administrator) may collect estate assets. If no personal representative is appointed, you may have to open a probate case to get letters testamentary or letters of administration.

3. Prepare and file a motion or petition in the circuit court

File a written motion or petition titled something like “Motion to Determine Right to Surplus Funds and for Payment” in the same circuit court that handled the foreclosure. Key elements to include:

• Identify the foreclosure case number and the sale information.
• State the amount of the alleged surplus and show how you know it (attach sheriff’s accounting, deed, and sale order).
• State your legal interest (e.g., executor, surviving child seeking to represent the estate, or the former owner) and attach proof: letters testamentary/administration, death certificate, proof of identity, deed or title evidence, and any mortgage payoff statements.
• Ask the court to (a) determine the parties entitled to the surplus and (b) order payment to the rightful claimant(s).
• Request an evidentiary hearing if there is a dispute about priorities or ownership.

4. Serve notice on interested parties

Serve the foreclosure plaintiff (the lender or lienholder who obtained the sale), any known junior lienholders, and other parties listed in the foreclosure case according to the West Virginia Rules of Civil Procedure. The court clerk can confirm the required service method and list of parties. Proper service is essential; failure to serve interested parties may delay or invalidate your claim.

5. Attend the hearing and provide proof

At the hearing bring originals or certified copies of the documents you filed and any additional documentation proving your claim to the funds (probate letters, will, deed, payoff statements, and identity documents). If multiple claimants appear, the court will determine priority and approve distribution by order.

6. Obtain the court order and collect funds

If the court rules in your favor, it will issue an order directing the clerk or sheriff to pay the surplus to the entitled party. The court may require you to sign an indemnity or provide further documentation before the clerk releases funds. Expect the clerk’s office to have a specific procedure for disbursement and identification requirements.

Special note if your mother is deceased

When the property owner is deceased, the surplus becomes part of the estate. You generally cannot withdraw estate assets without being the personal representative. If no probate case exists, you will likely have to open a small estate or full probate, obtain letters, and then pursue the surplus through the foreclosure court. Contact the probate clerk or look up probate procedures for the county where your mother lived.

Timing and deadlines

Different jurisdictions impose deadlines for claiming surplus funds or for bringing related claims. Check the foreclosure case docket and ask the clerk about any statutory or procedural deadlines. If a long time has passed since the sale, you should act promptly — the court may have already paid or disposed of funds according to prior orders.

Where to look up West Virginia law and local rules

West Virginia’s statutes and court rules are available online. Useful starting points:

• West Virginia Code (official): https://code.wvlegislature.gov/
• West Virginia Judiciary (circuit court and rules info): https://www.courtswv.gov/
• West Virginia Rules of Civil Procedure (service and filing rules): https://www.courtswv.gov/rules/

Those resources will help you confirm local procedures, filing fees, and any time limits that apply.

Helpful Hints

• Start at the circuit court clerk’s office for the foreclosure case—they will tell you whether any surplus was recorded and what has happened to it.
• If your mother is deceased, get a certified copy of her death certificate and check whether a will exists. You will likely need probate letters to claim the funds.
• Collect and attach clear documentary evidence: sale accounting, deed, mortgage payoff, probate letters, and identification.
• Document every communication with the sheriff and clerk (dates, names, copies of emails or letters).
• Be thorough about serving all interested parties; improper service often causes delays or dismissal of motions.
• If other claimants show up, expect a contested hearing; bring witnesses or affidavits to support your claim.
• Consider hiring a West Virginia attorney experienced in foreclosures and probate if the amount is significant or if priorities are disputed. Many county bar associations offer lawyer referral services.