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3 Simple Options in a Florida Foreclosure Appeals Case

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I’m Eric Lanigan, a partner with Lanigan and Lanigan, bankruptcy, foreclosure, and real estate attorneys in Winter Park, Florida.

Many times we’re faced with the situation where a trial court, the trial judge either in summary judgment or in trial rules against us and rules in favor of a lender in a foreclosure action.

And the question comes up then well what happens if there’s an appeal? 

You can watch a video on this topic called on the

What Happens in a Foreclosure Appeal Case? 

I recently had that situation come up where a client, a new client came to us they had already been through trial with a previous legal counsel and their counsel had told them that the judge had clearly erred in making the ruling that he did but that an appeal was somewhat a waste of time unless he could afford to put up a bond to stop the sale of the property. Because if there were no bond put up the property would be sold and therefore the appeal would essentially become irrelevant.

And this is just absolutely wrong. First of all it is possible to stop or freeze the proceedings without the posting of a bond. A bond is only required in cases where there has been a pure money judgment. And by that I mean that what the court has afforded the prevailing party in the trial court is specific money damages and nothing else. Well a foreclosure case is not a case of pure money judgment. It is in fact the taking of property and the selling of property.

So a court can stay or freeze all of the foreclosure proceedings while the case is on appeal. And that stay or freeze can be done either by the trial court judge or if they’re reluctant or refuse to do it–which would not be a surprise–then you can immediately file the appeal and file an emergency motion at the appellate court level asking the appellate court to freeze the lower court proceedings while it considers the appeal.

Three Foreclosure Case Criteria

In either case, there are basically going to be three criteria in a foreclosure case:

1. The first is: do you have a strong likelihood of success? Now obviously the trial court judge that has just ruled against you is probably going to take the position no which means as a practical matter you’re going to be bringing this up at the appellate court level.

And it gives you an opportunity to succinctly present what the trial court did in error and if it’s a very blatant error then you’ve got a high likelihood that the appellate court says, ‘yes, we believe that there is high likelihood that the appellate, the party who lost at the trial court will prevail on appeal.

2. Number two, if you’re the owner occupier of the property that the property is owner occupied that it’s being well maintained, and there’s no real likelihood that the property is going to be damaged or suffer irreparable harm if it’s not immediately turned around and sold.

3. And third, a compelling argument, is to protect innocent people. And by that we don’t mean anybody that’s involved in the foreclosure litigation. That innocent third party is the person who would ultimately buy the property from the lender after the foreclosure sale.

Because if they buy the property you’re on appeal. If you prevail in the appeal and the appellate court say vacates the final judgment, then it’s also going to be vacating the sale. And this innocent third party who thought that they were just buying a property is going to be moved off the property.  So to protect them from that occurring a stay would be important so that innocent third parties are not unintentionally injured.

So if you have a case where a trial judge has ignored the law just to get to a judgment, you can establish number one and number two and three should then fall into place. 

File a Notice of Lis Pendens

And always remember that if you can’t get a stay from the appellate court you can as a practical matter you can kind of create one because you can file, as I’ve talked about in a previous video, you can file a notice of lis pendens. Just like the bank did when they started the foreclosure. 

Because what notice of lis pendens means is it’s notice to the outside world that title to this property is being litigated. Well nobody’s going to buy property if title to the property is going to be litigated. So effectively the property is frozen in the hands of the bank while it goes through the appellate process.

So there are ways to stop the transfer of the property while you’re in an appeal. The preferred way would be to have the appellate court stay the proceedings so that the foreclosure sale never takes place. But you’ve always got that second opportunity that as a practical matter through the filing of a lis pendens will freeze the property while in the hands of the bank.

Invest in a Consultation With Eric Lanigan or Roddy Lanigan

Don’t make decisions on your foreclosure without speaking to an exceptional attorney, an experienced attorney and an attorney who has foreclosure litigation experience. Better to spend several hundred dollars by investing in an hour speaking with the Lanigans with all of your paperwork in front of you, to decide what to do than to lose many, many thousands of dollars and your home in a foreclosure. 

Call 407-740-7379 to make an appointment with the Lanigans. 

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