Archive for May 28th, 2013

Obtaining Relief after a Final Judgment of Foreclosure

Many homeowners inquire about legal representation with my firm after a Final Judgment of Foreclosure has already been entered.  Often, these homeowners were in denial about the possibility of foreclosure and/or had their heads buried in the sand for too long, failing to ”wake up” and seek help until right before a foreclosure sale is about take place.  Unfortunately, regardless of what I may think about the merits of their position, the procedural problems with taking on a case at that stage of the case are often prohibitive.  Bankruptcy is always an option, but, frequently, there’s not a lot that else can be done.

That said, there have been instances where I have taken a case after trial is over and a Final Judgment of Foreclosure had already been entered.  You may recall the Initial Brief I posted on this blog, which has been pending in the Second District for quite some time now (probably a good sign, as the appellate courts typically takes longer on appeals that have merit).  Additionally, I just recently became counsel in another case for purposes of filing an appeal, and this is the Emergency Motion for Stay Pending Appeal that I filed in the Fourth District Court of Appeal.  My intent, as you can see, was to get the Fourth District to cancel the foreclosure sale set for May 29, 2013 and allow me to prosecute the appeal before the home was sold at a foreclosure auction.

Today, I received an Order from the Fourth District which granted the stay, cancelling the foreclosure sale and directing the bank to respond to my motion within seven days.  In writing this blog, I want everyone to see the arguments that I raised that caused the Fourth District to cancel the sale.  Read the motion.  Don’t the facts look compelling?  Perhaps more importantly, though, I wanted everyone to understand why I was willing to take on these two cases while I’ve had to turn down so many others.

One obvious similarity in these two files is that the homeowners brought a court reporter to trial.  If you have any thought whatsoever of pursuing an appeal of the court’s ruling at trial, a court reporter is a must.  After all, if you can’t show the appellate court what happened at trial, you can’t possibly show why the lower court ruled incorrectly.  (To clarify, court reporters are not necessary for every hearing.  For evidentiary hearings or trials, though, they are a must.)

If that doesn’t make sense, read the Initial Brief and the Emergency Motion for Stay Pending Appeal. Notice how I’m repeatedly citing a “record” in the former and an “Appendix” in the latter?  That is absolutely essential if you want to pursue relief in the appellate court after a foreclosure trial.  If you don’t have a trial transcript, then it’s nearly impossible to pursue an appeal based on what happened at trial.  Occasionally, an appeal is still possible, but you’re swimming in the middle of the Atlantic Ocean without a life vest at that point.  Sure, you might randomly encounter a buoy 100 miles offshore, but chances are huge that you’ll drown.

A second common theme in these two files is that both homeowners came to me right after trial was over.  They didn’t wait until the foreclosure sale was about to take place.  They didn’t wait until a sheriff was knocking on the door.  You might think that shouldn’t matter, but it does.  To even bring an appeal, the homeowner must file a Notice of Appeal within 30 days after the Final Judgment.  If you wait until day 31, it doesn’t matter how meritorious an appeal might have been – you are procedurally barred from pursuing an appeal.

It’s often frustrating to turn down prospective clients who waited too long to call me.  I’m frustrated, and so are the homeowners.  But don’t shoot the messenger, folks.  I didn’t create the rules, and I’m not going to take someone’s case and charge someone a fee if it’s too late to file the appeal.

Third, the facts in these two cases were particularly compelling.  In the second case, for example, the homeowner paid a second mortgage in full and was making normal monthly mortgage payments until the bank put her payments into an account and stopped applying them towards her mortgage.  That shouldn’t matter, and technically it doesn’t matter on an issue such as whether the plaintiff had standing at the inception of the case, but that’s the sort of fact that really gets an appellate judge’s attention.  If that doesn’t make sense, think of it this way … to win an appeal, it’s sometimes not enough to show the appellate judges they have to reverse – you have to make them want to reverse.  Showing that my client made these payments does that (as would, say, making loan modification payments under a dual-track process).  To the greatest extent possible, you want to appear as if you’re wearing the white hat.

Of course, it’s almost always best to retain competent counsel before your foreclosure case is over, not after.  My win today doesn’t change that.  This blog is merely intended to shed some insight onto the types of facts I’m looking for when taking cases after a Final Judgment has already been entered.  And by posting this Initial Brief and Emergency Motion for Stay Pending Appeal, I hope to shed some light on the way in which these arguments should be presented.

Mark Stopa

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