Appealing a Foreclosure Judgment is a very difficult task, but you may have other options.
One of the most satisfying parts of my practice is taking a case close to a final hearing, that may end very badly for my client because they were unrepresented, looking at the case in the days or weeks that I have available to me and coming up with a solution that is in my client’s best interest and something the bank would not have offered on their own.While it is not quite stopping the foreclosure process, it is satisfying to say the least. Unfortunately, I can only help very few individuals given my schedule. So today, I wanted to take a few moments to discuss something I haven’t really addressed here – appealing a foreclosure judgment and other options available after a judgment has been entered against you.
If a judge entered an order on foreclosure against you recently (within the last five days), it is time to act – QUICKLY!
A lot of what will be discussed here is time sensitive. When it comes to appeals and motions for rehearing, trial courts and appellate courts can lose jurisdiction to help you if you do not act timely. One of my favorite legal quotes has always been “The law serves the vigilant, and not those who sleep over their rights.” – Scott v. Empire Land Co., 5 F.2d 873, 877 (US SD FL, 1925). This is especially true in post-judgment proceedings. When dealing with post judgment reconsideration and appeals, there are generally two methods that I find useful at the trial court level (the court that entered the foreclosure judgment against you) – a motion for rehearing or a motion to vacate (or set aside judgment). An appeal is basically a suit outside of the initial foreclosure suit and deals with a wholly different panel of judges. It is important to note, using any of these motions, to vacate order or for reahearing, at the trial court level is typically a long shot. You are essentially asking a sitting judge to undo either the complete foreclosure judgment or a portion of what he or she entered. Absent some clear evidence, this may be, in some counties, an impossible task.
Motion for Rehearing in Foreclosure Cases
A motion for rehearing is extremely time sensitive – generally you get fifteen (15) days after the date of the filing of the order to request this in a non-jury scenario (e.g., Fannie Mae/Freddie Mac foreclosure cases). Each judge, when faced with a motion to rehear a foreclosure judgment, gets to make their own call on this motion – they may even do this without an argument by the parties. Meeting with a foreclosure defense attorney, and retaining one if you so choose, should be your priority if you have left the hearing thinking the bank’s attorney won because you were not represented or that all of the facts and issues were not brought to the attention of the judge. Whether it is proper to request a rehearing is extremely fact specific, will vary on nearly every case, and will require prompt filings of the required motions in said case. If you schedule a consultation with a foreclosure attorney, bring them all the documents you have regarding your case. Explain what happened at the hearing and what has occurred in the suit. Every fact counts here and it may be what the judge relies on in making a ruling on a well pled motion.
Generally, I find that these motions are ruled on without a hearing, and in some counties are not even looked at by the judge that heard the case. It is important to state succinctly why you are requesting the rehearing, and to provide as persuasive of an argument as possible that your hearing requires a second chance.
Filing a Foreclosure Appeal in the Florida District Court of Appeals
Again, an extremely time sensitive requirement. A appeal, foreclosure or not, must generally be filed within thirty (30) days of the rendering of the trial courts order. It is also important to understand that an issue must properly be preserved for an appeal. Unfortunately, many cases that were not litigated by attorney’s familiar with the issues in foreclosure cases will be preserved, if at all, very poorly for an appeal. I cannot stress enough how important it is, if you are thinking of appealing a foreclosure judgment, to bring everything involved in your case – pleadings, motions, notes, etc. – to the attorneys attention as soon as possible. The Florida courts are extremely divided on some issues (e.g., Notice of Acceleration requirements), and interpretation of certain facts in your case can vary based on these nuances. Also, understanding the standard of review is important. If you are appealing a summary foreclosure judgment, the appellate court will review the trial court’s ruling de novo, or “a new”; plainly put, this allows the record, and the motions below to, in effect, be argued again to the district court of appeal. This is why meeting with a foreclosure defense attorney is important and should be done as soon as possible after judgment has been rendered.
Motion to Vacate (or Set Aside) Foreclosure Judgment
This is actually the most common relief from a foreclosure judgment I see filed. It is not because it is the most successful option, but because it does not require the strict time limits as a motion for rehearing or a notice of appeal and can be filed as a last ditch effort even when the previous time periods have expired. While it is not appealing a foreclosure judgment per se it still is an option for home owners that have had a foreclosure judgment rendered against them. Generally, if the motion is based on,, mistake, excusable neglect, newly discovered evidence, fraud, or some other grounds, it must be brought before the trial court within a year of the judgment date.
Act Now If you want to appeal the foreclosure judgment against you. There may still be other options.
Again, I cannot stress enough how important time is in these scenarios. If you would like to discuss your case Call my office at 813-502-6768, or e-mail me to schedule a consultation. If you do not want to appeal, but want to avoid possible collections, bankruptcy may be an option as well.
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