How Homeowners Can Effectively Handle the Mortgage Loan Modification Challenges

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For the past few years, homeowners in foreclosure situations have discovered the ugly protocol involving mortgage loan modification. These series of repeated process between the homeowner and the alleged lender can sometimes lead to frustrations, stress and emotional distress. This post is designed to help homeowners cope with the frustrations of mortgage loan modification protocol.

1) Before agreeing to any more loan applications, write to your lender.  Ask them to stipulate to the following statements in an affidavit form:
“Please stipulate and warrant that you are the owner of the obligation, or have the authority from the owner of the obligation to modify my loan.
If you can not or will not stipulate and warrant that you have the authority to modify my loan within 30 days, then you fully admit that you never had the authority to modify my loan.  You acted not in good faith and are practicing fraud and deceit.

This is an admission that will be used in all future litigation against your company.  You can not represent that you have the ability and authority to modify my loan while hiding the fact that you actually do not have such authority.”

BE SURE TO ASK FOR THE SPECIFIC NAME OF THE PERSON MAKING THE DECISION FOR YOUR LOAN MOD. You can get a deposition from this person if you move in to litigation.

2) Get a Securitization Audit.
If you get a third party expert witness to testify that your loan has been securitized, then present the audit to your servicer.  Ask them pointedly:
“It seems that my loan has been securitized.  Please see the enclosed securitization audit.  If my loan has been securitized, then you no longer own my promissory note.  If this is the case, then I am very confused.  Please explain to me how you have the authority to modify my loan.
Please stipulate and warrant that you are the owner of the obligation, or have the authority from the owner of the obligation to modify my loan.
If you can not or will not stipulate and warrant that you have the authority to modify my loan within 30 days, then you fully admit that you never had the authority to modify my loan.  You acted not in good faith and are practicing fraud and deceit.

This is an admission that will be used in all future litigation against your company.  You can not represent that you have the ability and authority to modify my loan while hiding the fact that you actually do not have such authority.”

3) Sue Your “Lender”
If you can gather enough evidence to prove that:
a) Your servicer has no authority to modify your loan, yet represent that they do.
b) They have acted not in good faith…and have continued to deny your loan mod, time and time again…especially with contradictory statements like “you make too much money” followed by “you make too little money”.
c) Find out from your securitization auditor that you qualify for HAMP but no actual application with HAMP was done with your loan.
d) You were put into a trial payment program…which you pay on time consistently…and are either foreclosed upon, or denied anyway for good measure, then you have a justifiable cause of action.

The title of your action would be asking for a “Permanent Injunction”.  Consult your attorney.  Basically, a permanent injunction is such that your bank can not foreclose on your home until such times as they offer you a sustainable loan modification.  The basis for this injunction is because they represent to you that they have the authority to modify the loan, and go through the motions of giving you a loan modification application.

The principle we want to use here is to prove that the “lender” is not acting in good faith.  We are going to make them eat their words.  In other words, if they represent that they can do a loan modification, but in fact, they can not…then they are guilty of misrepresentation.  Be sure to consult the Fair Debt Collections Practices Act under misrepresentation as another claim in your civil action.

The strategy here is, by suing your “lender”, you are now costing them big money…to the tune of $10,000 to $25,000 just to defend your action against them.  When it starts to hurt them…then they will be more likely to come to the table to deal with you more fairly.  Currently, there is ABSOLUTELY NO REASON for them to give you a loan mod.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

How California Homeowners in Foreclosure Can Move to Vacate Default Judgment

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This post is designed to educate California residents facing foreclosure, as to what they would expect and how to navigate out of the problem.

The Real Estate meltdown that began in late 2007 has resulted in an unprecedented number of loans in default and a substantial upsurge in foreclosures across the country. California continues to be one of the states hardest hit by the foreclosure crisis. Whether representing a borrower struggling to make its mortgage payments or a lender faced with a defaulted loan, it is essential for lawyers to have an understanding of the intricacies of California foreclosure law.

The starting point for this understanding is the statutory framework for nonjudicial foreclosure as well as California’s famous (or perhaps infamous) “one-action rule.”

In California, a lender considering foreclosure may choose one of two avenues—judicial or nonjudicial foreclosure—although sometimes a lender elects to commence a judicial foreclosure and a nonjudicial foreclosure to preserve (for a time) both options. Judicial foreclosure, as the term suggests, begins with the lender filing a complaint against the borrower. As with most litigation, this process can be drawn out and expensive. Nonjudicial foreclosure, on the other hand, is relatively inexpensive and less time-consuming.
A critical distinction between judicial and nonjudicial foreclosure is the lender’s ability to pursue the borrower for a deficiency judgment if the sale price is less than the full amount of the borrower’s obligation.

A deficiency judgment is an option only for lenders who choose judicial foreclosure.  For loans that are nonrecourse by statute or that contain contractual nonrecourse clauses, it generally does not make sense for the lender to foreclosure judicially, because the principal benefit of judicial foreclosure—the possibility of a deficiency judgment—is not available.

Nonjudicial Foreclosure: The remedy of nonjudicial foreclosure is found in a deed of trust. A deed of trust—the preferred instrument in California for securing a borrower’s loan obligations with real property—almost always contains a “power of sale” clause that enables the trustee (typically a title insurance company) to sell the property to satisfy the borrower’s obligations if a default occurs. Given the relative ease with which a nonjudicial foreclosure can be accomplished, most lenders opt for this approach.

The nonjudicial foreclosure rules are statutorily prescribed and require strict compliance. The rules endeavor to strike a balance among the varying interests of lenders, borrowers, other lien claimants, and trustees. Whereas lenders desire a speedy and inexpensive method of recovery, borrowers desire protection against wrongful loss of their property, junior lienholders want to protect their interests, and trustees simply need their responsibilities clearly delineated.

If any step in the foreclosure process violates the nonjudicial foreclosure statute, the validity of the foreclosure sale may be challenged. The borrower may be able to enjoin the sale and recover damages from the lender.
When a borrower defaults on an obligation secured by a deed of trust, the lender sometimes may prefer to restructure or “work out” a loan—for example, by reducing the interest rate and/or required periodic payments, or extending the maturity date. In other cases, the lender may decide that a workout is not realistic or in the lender’s best interest. In such a case, the lender will elect to declare a default, which starts in motion the process for selling the property pursuant to the power-of-sale provision.7 The first step is for the lender to make a demand on the trustee to commence the foreclosure process.

Notice of Default
One of the main components of the statutory scheme is the stringent notice requirements. Upon receipt of the lender’s demand, the trustee initiates a nonjudicial foreclosure by recording a notice of default (NOD) in the county in which the property is located. The purpose of the NOD is to provide notice to the borrower, its successors, junior lienholders, and other interested persons—and notice to the world—that there has been a default. The NOD must identify the name of the borrower, include recording information for the deed of trust or the legal description of the property, specify the type of breach that has occurred and the specific dollar amount due, declare the lender’s election to sell the property, and include the lender’s contact information.

The NOD must also contain a statement notifying the borrower that the default can be cured by payment of the delinquencies within the prescribed reinstatement period. However, if the note grants the lender the right to accelerate payment of the entire debt upon the borrower’s default, the NOD does not need to articulate the lender’s election to accelerate.

The trustee is required to mail a copy of the NOD to the borrower within 10 days of the recordation date and to all persons who have previously recorded a “request for special notice” of any default under the deed oftrust. Within one month after recording theNOD, the trustee also must send a copy of theNOD to any successor of the borrower andany junior lienholders.
Once the NOD is recorded, the foreclosure clock starts ticking. For the three months following recordation of the NOD, the borrower (and any successor), as well as anyjunior lienholder with a recorded lien, each has the opportunity to cure the default and “reinstate” the loan by paying all amounts in default and all reasonable costs and expenses incurred by the lender, including trustee’s and attorney’s fees, but excluding any portion of the principal that would not otherwise be due had the default not occurred. This exclusion allows the borrower to reinstate the loan without paying the entire debt. However, if the default resulted from the borrower’s failure to pay the entire principal balance at the maturity date, reinstatement is not possible.
The borrower, its successor, and any junior lienholder may exercise this reinstatement right beginning on the date of recordation of the NOD until five business days prior to the sale. If the default is cured, the borrower’s obligation is reinstated according to its original terms as if no default had occurred.
Within 21 days following reinstatement, the lender must deliver to the trustee a notice of rescission of the NOD, which withdraws the declaration of default and demand for sale and advises the trustee of the reinstatement.
The trustee must record the notice of rescission within 30 days after the trustee receives the notice and all fees and costs owing to the trustee.
The trustee is required to mail a copy of the NOD to the borrower within 10 days of the recordation date and to all persons who have previously recorded a “request for special notice” of any default under the deed of trust. Within one month after recording the NOD, the trustee also must send a copy of the NOD to any successor of the borrower and any junior lienholders. Once the NOD is recorded, the foreclosure clock starts ticking. For the three months following recordation of the NOD, the borrower (and any successor), as well as any junior lienholder with a recorded lien, each has the opportunity to cure the default and “reinstate” the loan by paying all amounts in default and all reasonable costs and expenses incurred by the lender, including trustee’s and attorney’s fees, but excluding any portion of the principal that would not otherwise be due had the default not occurred. This exclusion allows the borrower to reinstate the loan without paying the entire debt. However, if the default resulted from the borrower’s failure to pay the entire principal balance at the maturity date, reinstatement is not possible.
The borrower, its successor, and any junior lienholder may exercise this reinstatement right beginning on the date of recordation of the NOD until five business days prior to the sale. If the default is cured, the borrower’s obligation is reinstated according to its original terms as if no default had occurred.Within 21 days following reinstatement, the lender must deliver to the trustee a notice of rescission of the NOD, which withdraws the declaration of default and demand for sale and advises the trustee of the reinstatement. The trustee must record the notice of rescission within 30 days after the trustee receives the notice and all fees and costs owing to the trustee.
A minimum of three months must transpire after the NOD is recorded before the
trustee may record a notice of sale (NOS).
The NOS must specify the date, time, and location of the sale and include a description of the property and the deed of trust, the terms of the sale, the trustee’s contact information, the total amount of the unpaid balance of the obligation, and a reasonable estimate of costs incurred by the lender at the time of the initial publication of the NOS.
At least 20 days prior to the sale, the trustee is required to record the NOS, mail
the NOS to the borrower and all persons who requested special notice, post the NOS at the property itself and in one public place in the county in which the property is located standard practice is to post the NOS at a courthouse—and publish the NOS in a newspaper of general circulation in the city in which the property is located. The NOS must be republished once a week for three consecutive weeks.
The sale can be postponed for a number of reasons at any point before a bid has been accepted on the day of the sale. The post-ponement period can last for up to one year from the date of the original sale, after which time a new NOS must be published, posted, mailed, and recorded. Reasons for post-ponement include 1) the borrower and lender mutually agree to postpone the sale, 2) the borrower files for bankruptcy protection, 3) a court enjoins the sale, 4) the lender decides unilaterally to postpone the sale, and 5) the trustee postpones the sale to protect the interests of either the borrower or lender. If the sale is not postponed, it must take place at the location and time specified in the NOS and be open to the public.
Any person, including the borrower and lender, may bid at the sale. The trustee will sell the property by auction to the highest bidder for cash, although the lender is entitled to “credit bid” up to the full amount of the indebtedness. The trustee has the right to require all prospective bidders to show evidence of funds prior to commencing the bidding (usually a cashier’s check in hand).
Upon completion of the sale, a trustee’s deed upon sale is recorded, transferring title to the successful bidder.
One-Action Rule California’s one-action rule provides that there can be but one form of action for the recovery of any debt, or the enforcement of any right, secured by a mortgage upon real property.
The word “one” in one-action rule is used qualitatively and not quantitatively and refers to the rule that the lender’s only option to recover a debt secured by a mortgage or deed of trust upon real property is to foreclose on the collateral securing the debt. It is crucial that a lender be advised of the requirements of the one-action rule, as certain conduct that does not on its face appear to constitute an “action,” such as a bank lender exercising a statutory right of offset against an account held by its borrower, may violate the rule.
The one-action rule has two elements. First, the lender must pursue foreclosure
before taking any other action against the borrower for recovery of the debt.
Second, all the security must be exhausted before the lender sues the borrower directly on the debt.
However, since a deficiency judgment is unavailable in a nonjudicial foreclosure
sale, the lender cannot pursue the borrower for a personal judgment if the sale proceeds from a trustee’s sale are not enough to satisfy the debt. In jurisdictions without such a rule, the borrower can be forced into the untenable position of simultaneously having to defend a personal action on the debt and a foreclosure action on the real property.
The invocation of the one-action rule is at the borrower’s option. When a lender initiates proceedings to collect a personal judgment against the borrower, the borrower can raise the one-action rule as a defense and compel the lender to foreclose and apply the sale proceeds to satisfy the debt.
In the alternative, the borrower can elect not to assert the defense, in which case the lender that has not foreclosed is deemed to have made an election of remedies. The lender can recover a personal judgment against the borrower—but at the price of losing its lien and therefore its right to foreclose on the real property.
The one-action rule is widely misunderstood. Moreover, a violation of the rule can
result in devastating consequences for the lender. Before commencing a foreclosure—whether judicially or nonjudicially—a number of strategic considerations must be evaluated. Foreclosure can be a byzantine process for lenders and borrowers. It is the role of real estate counsel to provide guidance and demystify the complexities of California foreclosure law.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

How Can Nevada Homeowners Effectively Handle Foreclosure Matters

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Why Is It Impportant For Nevada Homeowners to Protect their Homes?

In Nevada, homeowners must be aware of mortgage loans and foreclosure laws inorder to be few steps aheads of unscrupulous elements that would do whatever it takes to snatch away your home right under your nose.

Why You Need to Know About Nevada Mortgage Loans

When you take out a loan to purchase residential property in Nevada, you typically sign a promissory note and a deed of trust. A promissory note is basically an IOU that contains the promise to repay the loan, as well as the terms for repayment. The deed of trust provides security for the loan that is evidenced by a promissory note.

How Can you Handle the Issues of Missed Payments

If you miss a payment, most loans include a grace period of ten or fifteen days after which time the loan servicer will assess a late fee. (Loan servicers collect and process payments from homeowners, as well as handle loss mitigation applications and foreclosures for defaulted loans.)

The late fee is generally 5% of the overdue payment of principal and interest based on the terms of the note. To find out the late charge amount and grace period for your loan, look at the promissory note that you signed. This information can also be found on your monthly mortgage statement.

What Are Your Option About Missing Quite a Few Payments

If you miss a few mortgage payments, your mortgage servicer will probably send a letter or two reminding you to get caught up, as well as call you to try to collect the payments. Don’t ignore the phone calls and letters. This is a good opportunity to discuss loss mitigation options and attempt to work out an agreement (such as a loan modification, forbearance, or payment plan) so you can avoid foreclosure.

How Can You Handle Pre-Foreclosure Loss Mitigation Review Period

Under the federal Consumer Financial Protection Bureau servicing rules that went into effect January 10, 2014, the mortgage servicer must wait until you are 120 days delinquent on payments before making the first official notice or filing for any nonjudicial or judicial foreclosure. This is to give you sufficient time to explore loss mitigation opportunities. (If a servicer’s sole purpose of providing a notice is to inform you that you are late on your payments and/or explain what your loss mitigation options are, the servicer can deliver the notice within this pre-foreclosure period.)

What About Deed of Trust, What You Need to Know

Nevada deeds of trust often contain a clause that requires the lender to send a notice, commonly called a breach letter or demand letter, informing you that your loan is in default before it can accelerate the loan and proceed with foreclosure. (The acceleration clause in the mortgage permits the lender to demand that the entire balance of the loan be repaid if the borrower defaults on the loan.)

The letter must specify:

  • the default
  • the action required to cure the default
  • a date (usually not less than 30 days from the date the notice is given to the borrower) by which the default must be cured, and
  • that failure to cure the default on or before the date specified in the notice may result in acceleration of the debt and sale of the property.

What Types of Foreclosure Procedures Is there In Nevada

In Nevada, most residential foreclosures are nonjudicial. This means the lender can foreclose without going to court as long as the deed of trust contains a power of sale clause.

What is Notice of Default and Election to Sell

In Nevada, Non-judicial proceedings is used to foreclose most home. The Nevada nonjudicial foreclosure process formally begins when the trustee, a third-party, records a Notice of Default and Election to Sell (NOD) in the office of the recorder in the county where the property is located, providing three months to cure the default.

A copy of the NOD must be sent to each person who has a recorded request for a copy and each person with an interest or claimed interest in the property by registered or certified mail within ten days after the NOD is recorded recordation.

What Are the Requirements for Posting NOD?

If a residential foreclosure, a copy of the NOD must be posted in a conspicuous place on the property 100 days before the date of sale.

Are there Any Affidavit Required

The trustee or beneficiary (lender) must record a notarized affidavit along with the NOD that states, based on a review of business records, including all of the following information.

  • The full name and business address of the current trustee or the current trustee’s personal representative or assignee, the current holder of the note secured by the deed of trust, the current beneficiary of record and the current servicer of the obligation or debt secured by the deed of trust.
  • That the beneficiary under the deed of trust, the successor in interest of the beneficiary or the trustee is in actual or constructive possession of the note secured by the deed of trust; or that the beneficiary or its successor in interest or the trustee is entitled to enforce the obligation or debt secured by the deed of trust.
  • That the beneficiary or its successor in interest, the servicer of the obligation or debt secured by the deed of trust or the trustee, or an attorney representing any of those persons, has sent to the borrower a written statement including the amount needed to cure the default, the principal amount of the debt, the accrued interest and late charges, a good faith estimate of all fees, contact information for obtaining the most current amounts due, and each assignee of the deed of trust.

What Other Alternatives Do I Have to Stop the Foreclosure?

You have 3 alternatives, sometimes 4.

Your alternatives are:

1). Try to call your alleged lender to see if you can get a reasonable person on the phone. Don’t panic, just be prepared as over 90% of the people you speak to on the phone are programmed to act certain way.i.e, if you are lucky as 99.9% you’ll get a recording and will have to leave a message, unfortunately, you have less that 20% of getting a call back response. You’ll know very early that the alleged lender, definitely not with your best interest at heart.

2). Nevada law requires that borrowers who are in foreclosure be given the option to participate in mediation if the property is owner-occupied.

The trustee must mail to the borrower (by registered or certified mail, return receipt requested) an Election to Mediate Form no later than ten days after recording the NOD. If the borrower wants to elect mediation, the form must be completed and returned within 30 days.

3). You can commence litigation to immediately stop the foreclosure, but you have to be prepared to whether the stop as you’ll experience various emotions during the litigation proceedings, but with time, you’ll get used to it.

3) Bamkruptcy is another method to stop foreclosure, but it will not be in your best interest if you just found yourself in foreclosure situation. We recommend Bankruptcy as the last resort and this is why?

If you are a homeowner with a mortgage payment, say like $1000/mth. If you have missed payment that is 1 year or more. Your Chapter 13 bankrupcty payments will be difficult for you to make once in bankrupcty because you will still make the Normal monthly payment and then some portion of the missed payments, which is sometimes, nealy half of the monthly payment. So if you make a payment of $1000 before the foreclosure began, you’ll now have to make ($1500 (Regular + Potion Payments) to catch up. So you ask yourself, if you can’t afford the original payment of $1000, before you went into foreclosure, how can you afford the higher payments.

In Nevada, You Have What is called Danger Notice

At least 60 days prior to the date of the sale, the trustee must provide the borrower(s) with a separate “Danger Notice” stating that they are in danger of losing their home to foreclosure, along with a copy of the original promissory note.

The notice must be:

  • personally served to the borrower
  • left with a person of suitable age and discretion (if the borrower is not available) and a copy mailed, or
  • if a person of suitable age and discretion is not available, then the notice may be posted in a conspicuous place on the property, left with a person residing in the property, and then mailed to the borrower.

What do you need to know about Notice of Sale

After expiration of the three-month period following the recording of the NOD, the trustee must give notice of the time and place of the sale by recording the notice of sale and by:

  • Providing the notice of sale to each required party by personal service or by mailing the notice by registered or certified mail to the last known address 20 days before sale.
  • Posting the notice of sale on the property 15 days before the sale.
  • Posting the notice of sale for 20 days successively in a public place in the county where the property is situated and on the property 15 days before sale.
  • Publishing a copy of the notice of sale three times, once each week for three consecutive weeks, in a newspaper of general circulation in the county where the property is situated.

Notice to Tenants

If the property is tenant occupied, a separate notice must be posted in a conspicuous place on the property and mailed to the tenant no later than three business days after the notice of sale is given.

Reinstatement Before Sale

In the case of owner-occupied housing, the borrower gets a right to reinstate by paying the arrearage, costs, and fees. This right expires 5 days prior to the date of the foreclosure sale.

The Foreclosure Sale

The foreclosure sale must be between the hours of 9:00 a.m. and 5:00 p.m. All sales of real property must be made:

  • at the courthouse in the county in which the property or some part thereof is situated (in counties with a population of less than 100,000), or
  • at the public location in the county designated by the governing body of the county for that purpose (in counties with a population of 100,000 or more).

The property will be:

  • sold to the highest third-party bidder or
  • revert to the foreclosing lender and become REO

Deficiency Judgment Following Sale

When a lender forecloses on a mortgage, the total debt owed by the borrower to the lender frequently exceeds the foreclosure sale price. The difference between the sale price and the total debt is called a “deficiency.” In some states, the lender can seek a personal judgment against the debtor to recover the deficiency. Generally, once the lender gets a deficiency judgment, the lender may collect this amount from the borrower.

In Nevada, a lender may obtain a deficiency judgment following foreclosure, but the amount of the judgment is limited to the lesser of:

  • the difference between the total debt and fair market value of the home, or
  • the difference between the total debt and foreclosure sale price.

For loans taken out after October 1, 2009, deficiencies are prohibited for purchase money loans (that have not been refinanced) held by a bank or other financial institution for single-family residences occupied continuously by the borrowers.

Redemption Period

A redemption period is the legal right of any mortgage borrower in foreclosure to pay off the total debt, including the principal balance, plus certain additional costs and interest, in order to reclaim the property. In Nevada, there is no redemption period following a nonjudicial foreclosure sale.

Eviction Following Foreclosure

If you don’t vacate the property following the foreclosure sale, the new owner will likely:

  • offer you a cash-for-keys deal (where the new owner offers you money in exchange for you agreeing to move out), or
  • give you a three-day notice to quit (leave) before filing an eviction lawsuit.

To learn more about foreclosure in general, ways to defend against foreclosure, and programs to help struggling homeowners avoid foreclosure

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

What 5th Circuit Homeowners Must Know About Stay Injunction During Appeal Procedings

If a party pursuing a collateral order appeal wants a stay of the trial court proceeding pending resolution of the attempted appeal, it must move for such order. Federal Rule of Appellate Procedure 8 governs motions for stay or injunctions while an appeal is pending. FED. R. APP. P. 8(a)(1)(C).

Rule 8 provides that a party must ordinarily move first in the district court for a stay of the order of a district court pending appeal or for an “order suspending, modifying, restoring, or granting an injunction” while an appeal is pending. FED. R. APP. P. 8(a)(1)(A), (C).

1. Contents and requirements of Motion for Stay filed in the Fifth Circuit

A party may bypass the district court and move for that relief in the court of appeals in the first instance by filing a motion showing that “moving first in the district court would be impracticable.” FED. R. APP. P. 8(a)(2)(A)(i).
If a party unsuccessfully sought a stay from the trial court, that party may seek a stay from the court of appeals by filing a motion stating that “a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.” FED. R. APP. P. 8(a)(2)(A)(ii).
Under either scenario—whether a stay was or was not sought in the district court in the first instance—any motion for stay in the court of appeals must also include:

(i) the reasons for granting the relief requested
and the facts relied on;
(ii) originals or copies of affidavits or other
sworn statements supporting facts subject to
dispute; and
(iii) relevant parts of the record.

FED. R. APP. P. 8(a)(2)(B); see also FED. R. APP. P. 18(a)(2)(B) (governing stays pending review of agency decision or order).
The Federal Rules of Appellate Procedure also require that the moving party give reasonable notice of the motion to all parties, including when, where, and to whom the application for stay or injunction is to be presented. FED. R. APP. P. 8(a)(2)(C). An original and three copies of the motion and supporting papers, together with a certificate of service, should be filed with the circuit clerk of the court of appeals. The motion does not need a cover, but must be securely bound so as to not obscure the text and so that it will lie reasonably flat when open.
There is no separate filing fee for filing a motion for stay or injunction in the court of appeals, but all required fees must have been paid in the underlying action before the court of appeals will act on the motion. Counsel should generally consult FED. R. APP. P. 27(a) and (d), 5TH CIR. R. 27.4, and the Internal Operating Procedure following 5TH CIR. R. 27.5 (which was effective December 1, 2002) concerning the requirements and format for motions. In particular, counsel should note that all motions should indicate whether they are opposed or not.
And, because a motion for stay or injunction is not merely a “procedural motion,” it must contain a certificate of interested persons. See 5TH CIR. R. 27.4.

The Fifth Circuit Internal Operating Procedures now clarify a gap in that existed in the rules until a few years ago regarding the lack of a regulation of the font size for motions. The Internal Operating Procedure following 5TH CIR. R. 27.5 makes clear that motions must comply with the typeface and type style requirements of FED. R. APP. P. 32(a)(5) and (6), which means that motions must be in no smaller than 14 point proportional typeface (or not more than 10½ characters per inch in monospaced typeface). The length of motions is limited to 20 pages, exclusive of the corporate disclosure statement (in the Fifth Circuit, the certificate of interested persons) and any accompanying documents authorized by Rule
27(a)(2)(B) and, in the specific context of a motion for stay or injunction, by Rule 8(a)(2)(B). FED. R. APP. P. 27(d)(2).

2. Response to Motion for Stay

Federal Rule of Appellate Procedure 8 governing motions for stay is silent concerning responses and replies. The general rule concerning motions provides that any party may file a response in opposition to a motion “within 10 days after service of the motion unless the court shortens or extends the time.” FED. R. APP. P. 27(a)(3)(A). In computing your response time, counsel should note that the computation-of-time rule in the Federal Rules of Appellate Procedure was recently amended (effective December 1 , 2013) and now provides that if the time for taking an action under the Federal Rules of Appellate Procedure is less than 11 days, then intervening Saturdays, Sundays, and legal holidays are excluded, unless the time period specifies that it is stated in calendar days. FED. R. APP. P. 26(a)(2).
Because the court may act on motions authorized by Rule 8 (for stay or injunction) in fewer than 10 days by giving reasonable notice that it intends to act sooner, if a party intends to respond to a motion for stay or injunction, it is a good idea to notify the clerk’s office as soon as possible and to transmit your response to the clerk’s office by overnight delivery as soon as it is ready. All responses received by the clerk before action on the motion are presented to the court for consideration.
As a general rule, the Fifth Circuit no longer sends a letter to the parties advising them that the court has received and filed a motion and identifying the deadline to file any response. The Fifth Circuit’s website advises of this change in its internal operating procedures and suggests that counsel register for the Fifth Circuit’s event notification service on its website to get notice right away of the filing any motions.
Any response is limited to 20 pages and, like the motion, must comply with the typeface and type style requirements of FED. R. APP. P. 32(a)(5) and (6). FED. R. APP. P. 27(d)(2); I.O.P. following 5TH CIR. R. 27.5

3. Reply
Although FED. R. APP. P. 27(a)(4) permits a reply to a response within 5 days after service of the response, the Fifth Circuit’s website warns that the court looks upon replies with great disfavor.
Not surprisingly, then, the court does not—as a general rule—grant extensions of time to file a reply to a response. Any reply is limited to 10 pages. FED. R. APP. P. 27(d)(2).

4. Internal processing A motion for stay filed in the court of appeals normally will be considered by a panel of the court.
FED. R. APP. P. 8(a)(1)(D). “But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.” FED. R. APP. P. 8(a)(1)(D). If the motion is an emergency motion, the clerk’s office immediately assigns the motion to the next administrative judge in rotation on the court’s administrative log and simultaneously sends copies of the motion to the other panel members.
Motions are ordinarily considered without oral argument. FED. R. APP. P. 27(e).
The court of appeals may condition relief on a party’s filing a bond or other appropriate security in the district court. FED. R. APP. P. 8(a)(1)(E).

5. Appellate court jurisdiction to rule on a motion for stay or injunction Practitioners should note that neither a motion for stay nor a motion for injunction transfer jurisdiction to the appellate court. For the court of appeals to have jurisdiction to consider a motion for stay or for injunction, the court of appeals’ jurisdiction must first be properly invoked by the filing of a notice of appeal, in the case of a collateral-order appeal or section 1292(a)(1) appeal for example, or by the pendency of an original proceeding or a petition for permission to appeal. The motion for stay can be filed concurrent with a document invoking the appellate court’s jurisdiction, but it cannot precede the invocation of the appellate court’s
jurisdiction.

6. Reconsideration
A party aggrieved by the court’s ruling on a motion may file a “motion for reconsideration,” (not a motion or petition for “rehearing”). A motion for reconsideration of action on a motion must be filed within 14 days (unless the United States is a party in a civil case, see 5TH CIR. R. 27.1). Counsel should note that a motion for reconsideration must be physically received by the clerk’s office by the deadline; the mailbox rule does not apply to motions. Reconsideration requests are limited to 15 pages.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

Why Homeowners Must Time Correctly Before Appealing Adverse Decisions

CASE STUDY: 989 F.2d 1074

Effective Foreclosure Defense requires timing. If you time correctly, you can save your home. Homeowners presently in litigation must time correctly when appealling adverse ruling to avoid conflict of Jurisdiction. This case shows how wrong timing before filing a Notice of Appeal resulted to Dismissal of Appeal for Lack of Jurisdiction.

989 F.2d 1074

25 Fed.R.Serv.3d 62

Don Byron REILLY; Mary Lou Reilly, Plaintiffs-Appellants,
v.
Bruce HUSSEY, Attorney; Robert J. Phillips, Attorney;
Federal Land Bank of Spokane, Defendants-Appellees.

No. 91-35903.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Nov. 2, 1992.
Decided March 23, 1993.

Don Byron Reilly and Mary Lou Reilly, pro se.

W. Arthur Graham, Cent. Coast Farm Credit, Arroyo Grande, CA, for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before: WRIGHT, HUG, and POOLE, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Reillys appeal pro se the district court’s order dismissing their adversary complaint. Because their notice of appeal was filed while a motion for rehearing was pending in the district court, we lack jurisdiction to hear their appeal.

FACTS AND PROCEDURAL HISTORY

2 In February 1977, the Reillys negotiated a loan from the Federal Land Bank of Spokane and gave as security a deed of trust to a ten-acre tract of land in Ravalli County, Montana. By February 1986, the Reillys were in default on the loan, having missed two annual payments, and had failed to pay real property taxes. The Bank initiated foreclosure proceedings.
3 The Reillys first attempted to avoid foreclosure by filing a Chapter 11 petition in the U.S. Bankruptcy Court, District of Montana, in January 1986. The court lifted the automatic stay so that the Bank could continue with pending foreclosure proceedings in Montana state court. The property was sold at a nonjudicial foreclosure sale in March 1987. The Reillys’ appeal to the Bankruptcy Appellate Panel for the Ninth Circuit was dismissed as moot.
4 In February 1987, while that appeal was pending, the Reillys sought to prevent foreclosure by filing an adversary proceeding in the bankruptcy court. They sought to void the deed of trust on the ground that the legal description was erroneous. The court dismissed their complaint, finding the deed valid under Montana law and not voidable under the Bankruptcy Code. The Reillys appealed to the U.S. District Court, District of Montana, which dismissed the appeal with prejudice.
5 In June 1988, on a creditor’s motion, the bankruptcy court converted the Reillys’ bankruptcy to a Chapter 7 proceeding. The Reillys appealed. Following the conversion, the bankruptcy court modified its order lifting the automatic stay to allow the Bank to continue an unlawful detainer action in state court. That court found the Reillys guilty of unlawful detainer and issued an order of ejectment. In October 1989, the BAP affirmed the conversion. Five weeks later, the Montana Supreme Court dismissed the Reillys’ appeal of their ejectment, finding that the issues raised were based solely on federal bankruptcy law and had already been decided in the federal proceedings.
6 In May 1989, the Reillys filed a second adversary complaint in the bankruptcy court, which is the basis of this appeal. The Reillys again complained, among other things, that the original order lifting the stay was improper. The bankruptcy court granted the Bank’s motion to dismiss the complaint.
7 The Reillys appealed. In March 1991, they filed an amended brief in which they argued, apparently for the first time, that because Judge Peterson failed to disqualify himself at the outset, all decisions of the bankruptcy court should be set aside.1 On June 4, 1991, the district court affirmed the bankruptcy court on all issues. First, the court held that the Reillys were barred by res judicata and collateral estoppel from challenging the order lifting the stay. Second, they failed to state a claim for relief under the Agricultural Credit Act of 1987 because the Act confers no private right of action. Third, res judicata barred their challenge to the validity of the deed of trust. The district court did not rule on whether Judge Peterson should have been disqualified.
8 Having suffered yet another adverse decision, the Reillys sought a hearing before us. The fate of their appeal is determined by the timing of their filings following the district court order. On June 14, 1991, they filed in the district court a motion to reconsider. On July 3, 1991, while their motion to reconsider was pending, they filed a notice of appeal. On July 29, 1991, the district court entered an order denying the motion to reconsider.
 JURISDICTION
9 We have jurisdiction to hear appeals from bankruptcy proceedings in which the district court or bankruptcy panel exercises appellate jurisdiction. 28 U.S.C. § 158(d). Such appeals are governed by the Federal Rules of Appellate Procedure, as amended in 1989. Fed.R.App.P. 6.
10 Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that a notice of appeal filed before the disposition of a post-trial motion “shall have no effect.” However, Rule 4(a)(4) does not apply in bankruptcy proceedings in which the district court or bankruptcy panel exercises appellate jurisdiction. Fed.R.App.P. 6(b)(1)(i). In contrast, Bankruptcy Rule 8015, which governs motions for rehearing2 by the district court or the bankruptcy appellate panel, is silent on the effect of appeals filed before a motion for rehearing is decided. See Bankr.Rule 8015, 11 U.S.C.A. (West Supp.1992). Rule 6(b)(2)(i) provides that, if a timely motion for rehearing is filed under Rule 8015, the time for appeal to the court of appeals runs from the entry of the order denying the rehearing.

11 The Advisory Committee on Appellate Rules deliberately omitted any provision regarding the effect of an appeal filed before the entry of an order denying a rehearing because it wished to “leave undisturbed the current state of law in that area.” Fed.R.App.P. 6, Advisory Committee Notes, 1989 Amendment, subdivision (b)(2). At the time of the amendment, this circuit had held that a notice of appeal in a bankruptcy case is null if it was filed while a motion for rehearing was pending in the district court. In re Stringer, 847 F.2d 549, 550 (9th Cir.1988). That holding is left undisturbed by the 1989 amendment of Fed.R.App.R. 6, and we reaffirm Stringer in this context.

12 In their zeal to pursue all possible avenues of review, the Reillys filed a notice of appeal while their motion for reconsideration was pending before the district court. Their notice of appeal was premature and a nullity: “[I]t is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam). Because the Reillys failed to file a notice of appeal after the district court denied their motion for reconsideration, we are without jurisdiction to hear their appeal.
13 Our holding does not deprive the Reillys of an opportunity to be heard. They have had their day in court; indeed they have had their days in many different courts. Clearly, they continue to feel aggrieved; but just as clearly, an unfavorable decision does not necessarily mean that a court has failed to fairly consider their arguments.
14 This appeal is dismissed for lack of jurisdiction.
15 DISMISSED.
1Bankruptcy Judge John L. Peterson presided over the chapter 11 proceedings and both adversary proceedings in the bankruptcy court. In June 1986, in the original bankruptcy hearing, Judge Peterson advised the parties of his wife’s minority stock interest in a creditor of the bankruptcy estate. He gave the parties the option of signing a remittal of disqualification or waiting for another bankruptcy judge. Both parties voluntarily signed the remittal

Under 28 U.S.C. § 455(e), a judge is not allowed to “accept from the parties to a proceeding a waiver of any ground for disqualification” based on the financial interest of the judge’s spouse. The Reillys did not seek review of the disqualification issue, however, until some five years and numerous proceedings later. While § 455 contains no explicit timeliness requirement, we have required that a motion to disqualify or recuse a judge under this section must be made in a timely fashion. Molina v. Rison, 886 F.2d 1124, 1131 (9th Cir.1989).

Moreover, in August 1990, while the present action was pending in district court, the Reillys filed a complaint with the Judicial Council of the Ninth Circuit alleging misconduct by Judge Peterson. We issued an order concluding that “[i]f the judge’s failure to recuse himself, despite the parties’ remittal, was conduct prejudicial to the effective and efficient administration of the business of the courts, appropriate and corrective action has been taken and this complaint therefore should be closed.” In re Charge of Judicial Misconduct, No. 90-80054, at 4 (9th Cir. Jan. 11, 1991).

2The Reillys filed a motion for “reconsideration.” The terms “rehearing” and “reconsideration” are used interchangeably. See In re Shah, 859 F.2d 1463, 1464 (10th Cir.1988); In the Matter of X-Cel, Inc., 823 F.2d 192, 194 (7th Cir.1987)

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

What Homeowners Must Know About Jurisprudential Exceptions to the Final Judgment

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Manu Homeowners in foreclosure litigations are confused as to what Court Orders should or should not be appealled. This post is designed to help clear those confusions as to what is appealable.

The primary gatekeeper at the door to the federal courts of appeals is the rule that only final judgments are appealable. The final judgment rule has performed this role well, for the most part. In certain cases, however, a trial court’s error on an interlocutory issue is effectively unreviewable on appeal from a final judgment. To deal with this type of injustice, the courts and Congress have created a patchwork of exceptions to the final judgment rule.

A. Collateral Order Doctrine:

The collateral order doctrine is sometimes called the Cohen collateral order doctrine, named for the landmark United States Supreme Court decision, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). When we talk about an order being final and appealable under the collateral order doctrine, we are still talking about an order that is appealable under section 1291.
The general rule is that “a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation can be ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994). Accordingly, as noted in the preceding section, a decision is ordinarily considered final and appealable under section 1291 only if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945); see Digital Equip., 511 U.S. at 863 (quoting Catlin). The Supreme Court has recognized, however, “a narrow class of collateral orders which do not meet this definition of finality, but which are nevertheless immediately appealable under § 1291.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996). “Since Cohen, [the Supreme Court has] had many opportunities to revisit and refine the collateral-order exception to the final-judgment rule.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988).

1. Three-prong test for the collateral order doctrine.

The Supreme Court has articulated a threeprong test to determine whether an order that does not finally resolve litigation is nonetheless appealable under section 1291. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
First, the order must “conclusively determine the disputed question.” Id. Second, the order must “resolve an important issue completely separate from the merits of the action.” Id. Third and finally, the order must be “effectively unreviewable on appeal from a final judgment.” Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (quoting Coopers & Lybrand, 437 U.S. at 468); accord Cunningham v. Hamilton County, 527 U.S. 198, 202 (1999) (“[C]ertain orders may be appealed, notwithstanding the absence of final judgment, but only when they ‘are conclusive, . . . resolve important questions separate from the merits, and . . . are effectively unreviewable on appeal from the final judgment in the underlying action.’” (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 42 (1995))); see also Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 490-91 (5th Cir. 2001) (restating the Cohen test as a four-step analysis: the decision (1) cannot be tentative, informal, or incomplete; (2) must deal with claims of right separable from, and collateral to, rights asserted in the action; (3) must be effectively unreviewable on the appeal from final judgment; and (4) must involve an issue too important to be denied review).

Under the first prong—that the order conclusively determine the disputed question—the Supreme Court has observed that there are two kinds of nonfinal orders: those that are “inherently tentative,” and those that, although technically amendable, are “made with the expectation that they will be the final word on the subject addressed.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 n.14 (1983). The latter category of orders meets the first prong of the collateral order doctrine.
Under the second prong—that the issue be separate from the merits—the Court has described it as a “distillation of the principle that there should not be piecemeal review of ‘steps towards final judgment in which they will merge.’” Moses H. Cone, 460 U.S. at 12 n.13 (quoting Cohen, 337 U.S. at 546). A classic case meeting the third p r o n g of the c o l l a t e r a l o r d e r doctrine—unreviewable on appeal from a final judgment—are denials of immunity from suit. As the Fifth Circuit explained in a recent case involving an appeal from a district court order denying a sheriff’s motion for summary judgment in an “official capacity” suit,

Official-capacity suits, in contrast [to
personal-capacity suits], ‘generally
represent only another way of pleading
an action against an entity of which an
officer is an agent.’” . . . [T]he plea
[here] ranks as a ‘mere defense to
liability’” [rather than immunity from
suit]. Because an erroneous ruling on
liability may be reviewed effectively on
appeal from final judgment, the order
denying the Sheriff’s summary
judgment motion in this “official
capacity” suit was not an appealable
collateral order.

Burge v. Parish of St. Tammany, 187 F.3d 452, 476-77 (5th Cir. 1999) (citations omitted); see Cunningham, 527 U.S. at 202. As its stringent requirements indicate, the collateral order doctrine is not to be applied liberally. “Rather, the doctrine “is ‘extraordinarily limited’ in its application.” Pan E. Exploration Co. v. Hufo Oils, 798 F.2d 837, 839 (5th Cir. 1986). Moreover, appealability under the collateral order doctrine must be determined “without regard to the chance that the litigation might be speeded, or a ‘particular injustice’ averted by a prompt appellate court decision.” Digital Equip., 511 U.S. at 868.

2. Examples of orders appealable under the collateral order doctrine.

A. Orders denying claims of immunity from suit asserted in a motion to dismiss or motion for summary judgment when the order is based on a conclusion of law:

  • Qualified immunity. Swint, 514 U.S. at 42 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); Gentry v. Lowndes County, 337 F.3d 481, 484 (5th Cir. 2003); Martinez v. Tex. Dep’t of Crim. Justice, 300 F.3d 567, 576 (5th Cir. 2002).
  • Immunity under the Foreign Sovereign Immunities Act. Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 385 (5th Cir. 1999); Stena Rederi A.B. v. Comision de Contratos, 923 F.2d 380, 385-86 (5th Cir. 1991).
  • Absolute immunity. Swint, 514 U.S. at 42 (citing Mitchell, 472 U.S. at 526, and Nixon v. Fitzgerald, 457 U.S. 731 (1982)).
  • Eleventh Amendment immunity. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); Martinez v. Tex. Dep’t of Crim. Justice, 300 F.3d 567, 573 (5th Cir. 2002); Reickenbacker v. Foster, 274 F.3d 974, 976 (5th Cir. 2001); see also Sherwinski v. Peterson, 98 F.3d 849, 851 (5th Cir. 1996) (denial of state’s motion to dismiss is appealable even if the district court’s order is not based on an express finding of no immunity if the end result is the same).
  • Refusal to rule on a claim of immunity from suit. Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986).
  • Successive appeal of denial of qualified immunity defense. Behrens v. Pelletier, 516 U.S. 299 (1996) (holding that there can be two interlocutory appeals under the collateral order doctrine of denials of qualified immunity defenses in the same case: one appeal from the denial of a motion to dismiss, and a second appeal from the denial of a motion for summary judgment).
  •  B. Abstention-based stay, dismissal, and remand orders:
  • Under Colorado River abstention. Moses H. Cone, 460 U.S. at 9 (abstention-based stay order).
  • Under Burford abstention. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (abstention-based remand order).
  • Under Pullman abstention. Moses H. Cone, 460 U.S. at 9 & n.8 (citing Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962)).

A district court order abstaining may take the form of an abstention-based stay order or an abstentionbased remand order. The Supreme Court addressed the appealability of abstention-based remand orders in Quackenbush. Most “remand” orders—those remanding removed cases back to state court for lack of subject-matter jurisdiction—are not reviewable by appeal or otherwise because of the bar to appellate review embodied in 28 U.S.C. § 1447(d). See Quackenbush, 517 U.S. at 714. If, on the other hand, a district court remands a case to state court for a reason other than lack of subject-matter jurisdiction, for example, in the interest of docket congestion, the bar to review in section 1447(d) does not apply, and the decision is reviewable. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 352-53 (1976).

C. Pre-remand decisions made by a district court if that decision is “separable” from the remand order and independently reviewable through a mechanism such as the collateral order doctrine.

  • Dahiya v. Talmidge Int’l, Ltd., No. 02-31068, 2004 WL 1098838 (5th Cir. May 18, 2004) (citing City of Waco v. United States Fid. & Guar. Co., 293 U.S. 140 (1934); Heaton v. Monogram Credit Card Bank, 297 F.3d 416, 421 (5th Cir. 2002); Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 486 (5th Cir. 2001); Arnold v. State Farm Fire & Cas. Co., 277 F.3d 772, 776 (5th Cir. 2001); Linton v. Airbus Industrie, 30 F.3d 592, 597 (5th Cir. 1994); Angelides v. Baylor Coll. of Med., 117 F.3d 833, 837 (5th Cir. 1997)); Soley v. First Nat’l Bank, 923 F.2d 406, 410 (5th Cir. 1991); see also In re Benjamin Moore & Co., 318 F.3d 626 (5th Cir. 2002) (addressing the separable order doctrine to determine if collateral order doctrine conferred jurisdiction on the court to review the order of remand in a mandamus proceeding).

D. Order denying motions to intervene. Edward v. City of Houston, 78 F.3d 983, 992 (5th Cir. 1996) (en banc). But see Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987) (order granting motion to intervene but conditioning or restricting it is not immediately appealable; appeal must await final judgment).

E. Order deciding that plaintiff is not required to post security for payment of costs. Cohen, 337 U.S. at 547.

F. Order denying appointment of counsel to litigants who cannot afford counsel. Robbins v. Maggio, 750 F.2d 405 (5th Cir. 1985).

G. Order remanding action to state court pursuant to a contract between the parties. McDermott Int’l, Inc. v. Lloyds Underwriters, 944 F.2d
1199 (5th Cir. 1991).

H. Discovery orders directed to third parties. Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992) (Although discovery orders are normally reviewed by mandamus or on appeal from a contempt order, “A discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.”).

I. Pre-contempt appeals by the President of the United States to avoid unnecessary constitutional confrontations between two coordinate branches of government. See United States v. Nixon, 418 U.S. 683 (1974). (Watch out for the United States Supreme Court’s decision in Cheney v. United States District Court (No. 03-475), in which one of the issues before the Supreme Court is “whether the court of appeals had mandamus or appellate jurisdiction to review the district court’s unprecedented discovery orders in this litigation” that, unlike United States v. Nixon, accepted a claim of executive privilege? Cheney v. United States Dist. Court, 124 S. Ct. 1391 (2004) (denying motion to recuse); see Cheney v. United States Dist. Court, 124 S. Ct. 958 (2003) (No. 03-475) (granting certiorari)).

J. Order requiring turnover of documents claimed to be privileged as attorney work product when the documents are already in the court’s possession because, “if the court already has lawful possession of the documents, a subsequent turnover order will be immediately enforceable without the necessity of holding the subpoenaed party in contempt.” In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994) (citing Perlman v. United States, 247 U.S. 7 (1918)).

K. Turnover order allowing a receiver to take possession of and sell corporate assets of nonparties. Maiz v. Virani, 311 F.3d 334, 339 n.4 (5th Cir. 2002).

L. Order approving receiver’s plan to distribute assets of investment company whose assets were frozen after the SEC investigated it for securities fraud. SEC v. Forex Asset Mgmt. LLC, 242 F.3d 325, 330 (5th Cir. 2001).

M. Order refusing to modify a prior consent decree where enforcement of the consent decree ran afoul of the State’s Eleventh Amendment Immunity. Frazar v. Gilbert, 300 F.3d 530, (5th Cir. 2002) (finding order also reviewable under 28 U.S.C. § 1291(a) because it was an order “refusing to dissolve or modify” an injunction), rev’d on other grounds, Frew ex rel. Frew v. Hawkins, 124 S. Ct. 899 (2004).

N. Order determining that former Department of Justice attorneys were eligible to act as fact and expert witnesses for private party in civil rights suit brought by government. EEOC v. Exxon Corp., 202 F.3d 755, 757 (5th Cir. 2000).

O. Orders affecting the media’s First Amendment rights. United States v. Brown, 250 F.3d 907, 913 n.8 (5th Cir. 2001) (orders protecting juror anonymity (citing United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir. 1977)); Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001) (court closure orders or confidentiality orders (citing Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926 (5th Cir. 1996)); see also United States v. Brown, 218 F.3d 415, 420 (5th Cir. 2000) (gag order that applied to attorneys, parties, and witnesses and prohibited them from discussing case with any public communications media was appealable under the collateral order doctrine by criminal defendant in whose trial the gag order was issued). But see United States v. Edwards, 206 F.3d 461, 462 (5th Cir. 2000) (per curiam) (collateral order doctrine did not apply to criminal defendant’s motion to lift gag order).

3. Examples of orders not appealable under the collateral order doctrine.

A. Order denying a motion to stay or dismiss federal court litigation under Colorado River abstention. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988).

B. Order denying summary judgment motion based on Noerr-Pennington doctrine.
Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000).

C. Order denying claim of immunity from liability (as opposed to immunity from suit). Swint, 514 U.S. at 42 (citing Mitchell, 472 U.S. at 526).

D. Order denying claim of immunity from suit that turns on factual determinations. Stena Rederi A.B. v. Comision de Contratos, 923 F.2d 380, 385-86 (5th Cir. 1991). But cf. Mitchell, 472 U.S. at 528 (the resolution of legal issues which are appealable under the collateral order doctrine often will entail some “consideration of the factual allegations that make up the plaintiff’s claim for relief”).

E. Order denying claim of immunity from suit based on sufficiency of the evidence, i.e., whether there is a genuine issue of fact. Johnson v. Jones, 515 U.S. 304 (1995); Kinney v. Weaver, No. 00-40557, 2004 WL 811724, at *6 n.9 (5th Cir. Apr 15, 2004); Martinez v. Tex. Dep’t of Crim. Justice, 300 F.3d 567, 576 (5th Cir. 2002) (“For a qualified immunity appeal, however, our review of any factual disputes is limited to their materiality, not their genuineness.”).

F. In rare instances, denial of claims of immunity on the eve of trial. Edwards v. Cass County, 919 F.2d 273, 276 (5th Cir. 1990) (“If every denial of a motion for leave to file a summary judgment motion asserting qualified immunity were immediately appealable, defendants would have a guaranteed means of obtaining last-minute continuances. We read Mitchell v. Forsyth as affording defendants a reasonable opportunity to obtain review of their qualified immunity claims without losing part of their immunity rights by having to stand trial. However, Mitchell is not designed as an automatic exemption from the orderly processes of docket control.” “To hold otherwise would be to open the floodgates to appeals by defendants seeking delay by asserting qualified immunity at the last minute (or even, as here, following jury selection).”).

G. Order denying the summary judgment of government officials sued in their personal or individual capacities is not an appealable collateral order. Burge v. Parish of St. Tammany, 187 F.3d 452, 476-77 (5th Cir. 1999) (citing Swint, 514 U.S. at 42).

H. Order denying or granting stays pending arbitration. Rauscher Pierce Refsnes, Inc. v. Birenbaum, 860 F.2d 169 (5th Cir. 1988).

I. Order denying certification of a class. Coopers & Lybrand, 437 U.S. at 935 (now appealable by permission under Rule 23(f)).

J. Order denying motion to disqualify counsel. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981).

K. Order granting motion to disqualify. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985)

L. Order refusing to enforce a settlement agreement claimed by a party to protect it from suit. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994).

M. Order denying a motion to dismiss based on the invalidity of service of process claiming immunity from such process. Van Cauwenberghe v. Baird, 486 U.S. 517, 521 (1988).

N. Orders concerning post-judgment discovery. Piratello v. Philips Elecs. N. Am. Corp., 360 F.3d 506, 508 (5th Cir. 2004) (order compelling party to appear at a deposition by a particular date, to answer questions regarding assets, and to produce documents requested, over a claim of self-incrimination; no jurisdiction over district court’s order under 1291 or collateral order doctrine; instead, the remedy was by appealing a contempt order)

Piratello, 360 F.3d at 508 (“This court has indicated its agreement with the Fourth Circuit’s view that the availability of an appeal through a contempt order renders the collateral order doctrine inapplicable to discovery orders. See A-Mark Auction Galleries, 233 F.3d at 898-99 (noting, with approval, the holding of MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116, 119 (4th Cir. 1994)).”). In MDK, the Fourth Circuit said: “Courts have long recognized that a party sufficiently exercised over a discovery order may resist that order, be cited for contempt, and then challenge the propriety of the discovery order in the course of appealing the contempt citation. [citations omitted] Indeed, the Supreme Court has pointed to this path to appellate review as a reason why discovery orders are not appealable under Cohen.” MDK, Inc., 27 F.3d at 121

O. As a general matter, pre-trial discovery orders do not constitute final decisions under § 1291, and therefore, are not immediately appealable. See A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n, 233 F.3d 895, 897 (5th Cir. 2000) (citing Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992)); see Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981).
The Supreme Court has held that a party that wishes to immediately appeal a discovery order “must [first] refuse compliance, be held in contempt, and then appeal the contempt order.” Church of Scientology, 506 U.S. at 18 n.11 (citing United States v. Ryan, 402 U.S. 530 (1971)). See infra p. 43 (mandamus may also be available when the discovery order requires disclosure of information claimed to be privileged).

P. Order granting or denying a motion to transfer venue under section 1404(a). Brinar v. Williamson, 245 F.3d 515, 517-18 (5th Cir. 2001); La. Ice Cream Distribs. v. Carvel Corp., 821 F.2d 1031, 1033 (5th Cir. 1987).

Q. Order of civil contempt. FDIC v. LeGrand, 43 F.3d 163, 168 (5th Cir. 1995); Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990).

R. Order of an agency review board remanding to an ALJ for further factfinding and consideration before final agency decision is rendered. Exxon Chems. Am. v. Chao, 298 F.3d 464, 469-70 (5th Cir. 2002).

B. Other Common-Law Doctrines of Finality

1. Gillespie “pragmatic finality” doctrine

Under the Gillespie doctrine, the requirement of finality is to be given a practical rather than a technical construction in determining the appealability in marginal cases of an order falling within what the Gillespie decision called the “twilight zone” of finality. Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53 (1964). Counsel should avoid relying on the Gillespie doctrine.

The Supreme Court has distinguished Gillespie on grounds that, according to Professor Wright and his collaborators, “bury it quietly.” 15A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3913, at 479 (2d ed. 1992). In Coopers & Lybrand v. Livesay, the Supreme Court refused to apply the Gillespie doctrine to permit appeal from an order
decertifying a class action, even on the assumption that the result would be termination of the litigation. Rather than expanding Gillespie, the Court wrote that permitting such appeals under section 1291 would be plainly inconsistent with the policies underlying section 1292(b) and that “[i]f Gillespie were extended beyond the unique facts of that case, § 1291 would be stripped of all significance.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n.30 (1978) (noting that Gillespie concerned a marginally final order disposing of an unsettled issue of national significance and that review of the issue “unquestionably implemented the same policy Congress sought to promote in §1292(b)”).

In fact, the most recent pronouncement from the Fifth Circuit about the vitality of the Gillespie doctrine is that the Fifth Circuit “no longer recognizes the exception.” Kmart Corp. v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997); see Sherri A.D. v. Kirby, 975 F.2d 193, 202 n.12 (5th Cir. 1992) (calling practical finality more chimerical than real); United States v. Garner, 749 F.2d 281, 288 (5th Cir. 1985) (pragmatic finality approach has been virtually limited to facts of Gillespie). As the Fifth Circuit explained, Gillespie’s case-by-case approach to determining pragmatic finality is in fundamental conflict with the values and purposes of the final-judgment rule. See Pan E. Exploration Co. v. Hufo Oils, 798 F.2d 837, 841-42 (5th Cir. 1986); Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir. 1984) (en banc).

If counsel finds a case supporting finality that sounds like it is based on practical or pragmatic finality, counsel should carefully trace the cases supporting the theory of finality to make sure that Gillespie is not the ultimate source of authority for that theory. An opinion’s pedigree is important. Counsel should make an informed decision about relying on those cases that rely on or are indirect progeny of Gillespie.

2. “Death knell” doctrine

Under the “death knell” doctrine, which is sometimes equated with the Gillespie doctrine, a case is final when a party is “effectively out of court.” Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962); see McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982). The doctrine provides that any decision forcing a plaintiff to give up his claim, in effect, sounds the “death knell,” making it final for purposes of appeal. Coopers & Lybrand, 437 U.S. at 465-69.

Like the Gillespie doctrine, many commentators have argued that the death knell doctrine is all but a dead letter. Although the Fifth Circuit in the past noted that the Supreme Court did not actually overrule the death knell doctrine in Coopers & Lybrand, see McKnight, 667 F.2d at 479, the Fifth Circuit noted that the U.S. Supreme Court’s post-Cooper decision “in Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), declared that its prior decision in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), sounded the death knell to that doctrine.” Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1103 n.3 (5th Cir. Feb. 1981).

And, more recently, the Fifth Circuit observed that the Supreme Court did “limit the death knell exception” in Coopers & Lybrand and in its later decision, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 10 n.11 (1983). See Kmart Corp. v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997).

In Moses H. Cone, the Supreme Court held that Idlewild’s reasoning was limited to abstention or similar doctrines where all or an essential part of the federal suit goes to a state forum. Aronds, 123 F.3d at 300. Further, even in cases involving stays, the Fifth Circuit has stated that while it liberally construed the death knell exception in the past, it could no longer do so because the exception was limited to cases where the stay requires all or essentially all of the suit to be litigated in state court. See Aronds, 123 F.3d at 300 (citing United States v. Garner, 749 F.2d 281, 288 (5th Cir. 1985), and Kershaw v. Shalala, 9 F.3d 11, 14 (5th Cir. 1993)). And even in cases involving abstention doctrines, resort to the death knell doctrine is usually unnecessary; direct reliance may be placed on Moses H. Cone and the Supreme Court’s more recent decision in Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996).

3. Forgay “hardship–irreparable injury” exception

The Forgay doctrine, or, as it is sometimes called the “hardship and irreparable injury” exception to the final-judgment rule, grew out of Forgay v. Conrad, 47 U.S. (6 How.) 201 (1848). Today, the Forgay doctrine—if it has any continuing validity—is viewed a narrow exception to the final-judgment rule; it allows immediate appellate court review of district court orders that adjudicate part of one claim by directing the immediate delivery of property from one party to another, when there is the possibility that the losing party will experience irreparable harm or hardship if appeal of the execution is not allowed. Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 512 n.8 (6th Cir. 2001) (citing Forgay, 47 U.S. at 204); see also 15A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3910, at 328 (2d ed. 1992) (noting that the Forgay doctrine “is likely to be applied only to orders that improvidently direct immediate execution of judgments that involve part of the merits of a claim and are outside the limits of Rule 54(b)”).

Although the Forgay doctrine is occasionally cited, it—like the Gillespie and death knell doctrines—is probably a dead letter. Petties v. Dist. of Columbia, 227 F.3d 469, 473 (D.C. Cir. 2000) (“[W]e are not at all sure that Forgay has continuing vitality apart from the collateral order doctrine . . . .”); see Digital Equip., 511 U.S. at 868 (appealability under the collateral order doctrine must be determined “without regard to the chance that the litigation might be speeded, or a ‘particular injustice’ averted by a prompt appellate court decision”); see, e.g., Maiz v. Virani, 311 F.3d 334, 339 n.4 (5th Cir. 2002) (holding that it had appellate jurisdiction under the collateral order doctrine over an order directed at two nonparty corporations to turnover property “worth tens of millions of dollars”).
In fact, the two most recent Fifth Circuit cases citing the Forgay doctrine as a possible jurisprudential exception to finality were decided more than a decade ago. Goodman v. Lee, 988 F.2d 619, 626 (5th Cir. 1993) (citing Forgay for a narrow proposition, but distinguishing it); Lakedreams v. Taylor, 932 F.2d 1103, 1107 n.7 (5th Cir. 1991) (citing it in dicta).

The Forgay category of hardship finality is narrow, and according to the Wright & Miller treatise, has not generated a large number of appeals. 15A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3910 (2d ed. 1992). The most common, and the most expansive, jurisprudential exception to the finaljudgment rule is the collateral order doctrine.
Despite its stringent requirements and arguably limited applicability, the collateral order doctrine is the best chance of establishing appellate jurisdiction on a jurisprudential exception. Pan E. Exploration Co. v. Hufo Oils, 798 F.2d 837, 839 (5th Cir. 1986). But, if the facts of your case fit into the narrow and specific facts of the Forgay doctrine, counsel may wish to consider citing both the collateral order and Forgay doctrines and reviewing the Wright & Miller treatise’s treatment of the doctrine, which argues that “within its restricted sphere it provides a highly desirable elaboration of the final judgment rule.” 15A WRIGHT ET AL., supra, § 3910, at 329 (2d ed. 1996).

C. Procedure for Appealing Under the Collateral Order Doctrine

“An appeal taken under the collateral order doctrine is subject to all the usual appellate rules and time periods, including Rule 4 of the Federal Rules of Appellate Procedure.” United States v. Moats, 961 F.2d 1198, 1203 (5th Cir. 1992); see also Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 386 (5th Cir. 1999) (“While we said in Moats that appeals taken pursuant to the collateral order doctrine are subject to all of the usual appellate rules governing interlocutory appeals, we also specifically identified Rule 4.”). A party seeking to appeal under the collateral order doctrine should follow the appeal procedures under FED. R. APP. P. 4 that apply to appeals “as of right” from traditional final judgments (e.g., invoke the appellate court’s jurisdiction by filing a notice of appeal in the district court within the time specified by FED. R. APP. P. 4).

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Effective Use of Injunctions Can Make or Break Homeowner’s Foreclosure Case

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CASE STUDY: 5 F.3d 539 Unpublished Disposition

Effective Foreclosure Defense requires timing. If you time correctly, you can save your home. Homeowners presently in litigation must use injunctions to their advantage. Ignorance will not be to your advantage.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

In re Evalyn PREBLICH, Debtor.
Evalyn PREBLICH, Appellant,
v.
Kenneth W. BATTLEY; Dennis Sammut, Appellees.

No. 92-36540.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 11, 1993.*
Decided Aug. 24, 1993.

Appeal from the United States District Court for the District of Alaska; No. CV-91-419-HRH, H. Russel Holland, Chief District Judge, Presiding.

D. Alaska

AFFIRMED.

Before PREGERSON, BRUNETTI and RYMER, Circuit Judges.

MEMORANDUM**

Chapter 7 debtor Evalyn Preblich appeals pro se from the district court’s affirmance of a bankruptcy court order authorizing the sale of certain bankruptcy estate property near Hope, Alaska to appellee Dennis Sammut by appellee-trustee Kenneth W. Battley. The district court held that because Preblich had failed to obtain a stay pending appeal, her challenge to the sale was moot under 11 U.S.C. Sec. 363(m). Preblich also petitions this court to stay the present appeal pending resolution by the Ninth Circuit Bankruptcy Appellate Panel of an allegedly related matter arising from the same bankruptcy. Sammut, meanwhile, moves this court to strike Preblich’s Reply Brief.

We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm the order of the district court, and deny the motions of both parties.

I. MOOTNESS

The district court ruled that Preblich’s challenge to the bankruptcy court’s authorization of the sale of the subject property was moot under 11 U.S.C. Sec. 363(m) because she had failed to obtain a stay pending appeal. Preblich does not dispute the fact that she did not obtain a stay, but instead offers reasons why this situation should be excepted from the stay requirement. After careful consideration of these arguments, we conclude that all of them lack merit.

Section 363(m) provides that an appeal from the bankruptcy court’s authorization of the sale of certain property cannot affect the rights of a good faith purchaser, unless the debtor stays the sale pending an appeal.1 We have applied this statute strictly, and have recognized only two situations in which failure to obtain a stay will not render an appeal moot: “(1) where real property is sold to a creditor subject to the right of redemption and (2) where state law would otherwise permit the transaction to be set aside.” In re Mann, 907 F.2d 923, 926 (9th Cir.1990) (internal citations omitted). We have done so in the interest of promoting finality in bankruptcy. See In re Onouli-Kona Land Co., 846 F.2d 1170, 1172 (9th Cir.1988).

Preblich argues that her appeal of the sale authorization order is not moot because she holds a statutory right of redemption in the subject property which would authorize the setting aside of the sale under state law. Preblich fails, however, to explain either the factual or statutory basis of this claim. Indeed, she cites no Alaska law whatsoever for the proposition that the trustee’s sale of the property in this case may be set aside for any reason. Our own research, reveals that Alaska statutes do recognize a right of redemption, but only where property is sold to satisfy a judgment or other lien. See Alaska Stat. Secs. 09.35.250 (redemption by judgment debtor or successor), 09.45.190 (redemption after foreclosure of lien) (1983). The sale at issue here falls into neither of these categories; it was an ordinary sale of estate assets for the purposes of bankruptcy liquidation.

Preblich also argues that section 363(m) is not applicable to her appeal because Sammut did not purchase the property in “good faith” within the meaning of the statute. Specifically, Preblich contends that the sale price was not adequate, that the auction was not adequately advertised, and that the trustee agreed to pay for unnecessarily expensive environmental cleanup measures. We have defined a lack of good faith under this statute to constitute “fraud, collusion … or an attempt to take grossly unfair advantage of other bidders.” Onouli-Kona Land Co., 846 F.2d at 1173.

After reviewing Preblich’s contentions, we conclude that none are sufficient to establish a lack of good faith on the part of Sammut. First of all, we have explicitly held that good faith does not depend on the value paid for the subject property. Id. at 1174. Preblich’s contentions that Sammut did not pay a sufficiently high purchase price are therefore unavailing. Second, the fact that advertisement of the property was not as extensive as Preblich wished, does not render the sale fraudulent, collusive or unfair. According to the district court, the property was advertised in the Hope-Sunrise area, and was ultimately sold at an auction in which Sammut and one other individual bid against each other. Under these circumstances, we are unable to conclude that the sale lacked good faith. Third, the fact that the trustee may have paid more than necessary for environmental cleanup in connection with the sale is entirely irrelevant to Sammut’s good faith. Although these expenditures may have effectively lowered the purchase price, the inadequacy of that price will not establish that Sammut lacked good faith.

Finally, Preblich argues that her appeal should not be adjudicated moot under section 363(m), because the trustee unlawfully exercised control over the subject property. According to Preblich, the trustee recovered the property from Preblich’s husband and son as a fraudulent conveyance, under a judgment of the bankruptcy court. Preblich contends, however, that the fraudulent conveyance judgment was in error and that the trustee did not have a right to sell the property to Sammut.

However true Preblich’s contentions may be, the fraudulent conveyance issue was the subject of a separate bankruptcy court order which was separately appealable and is not presently before this court. Moreover, a finding that the trustee had improperly recovered the subject property for the bankruptcy estate would not overcome section 363(m). In the absence of a stay, section 363(m) renders moot any action which might affect the rights of a good faith purchaser. Although we have recognized narrow exceptions to this rule, see In re Mann, 907 F.2d at 926, an erroneous fraudulent conveyance holding on the part of the bankruptcy court would satisfy none of them.

II. MOTION TO STAY THE APPEAL

Subsequent to filing the present appeal, Preblich petitioned this court to stay this proceeding pending the resolution of another matter which is pending before the Ninth Circuit Bankruptcy Appellate Panel, BAP No. 92-1861. Preblich contends that “[i]f this case should be decided favorably for the appellant, the Ninth Circuit case would become moot. If it is decided unfavorably, then it will be [appealed] and consolidated with the current appeal so there will be just one appeal.” Preblich, however, gives no description of the issues involved in the BAP case or any explanation of why a favorable BAP decision would render the present appeal moot. For this reason we are not persuaded that staying the present appeal is necessary and accordingly deny Preblich’s motion.2

III. MOTION TO STRIKE

Sammut has moved to strike the Preblich’s Reply Brief on the ground that it raises matters not within the scope of her opening brief and introduces evidence which is not a part of the record. Because we reach the merits of Preblich’s appeal and reject it, we deny Sammut’s motion as moot.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s affirmance of the bankruptcy court’s order authorizing the sale of the subject property, deny Preblich’s motion to stay the present appeal and deny Sammut’s motion to strike Preblich’s Reply Brief.

AFFIRMED.

*The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1 The statute explicitly provides that:

The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal.

11 U.S.C. Sec. 363(m).

2 Sammut suggests that the BAP case referred to by Preblich involves an attempt to reopen the adversary proceeding in which the bankruptcy court held that Preblich’s conveyance of the subject property to her husband and son was fraudulent. As we explained above, however, a finding that the conveyance was not fraudulent would not overcome the strict requirement in section 363(m) that a stay be obtained if an appellate court is to provide any relief affecting the rights of a good faith purchaser

Why Homeowners Must Effectively Use Court Injunctions To Save Their Homes

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CASE STUDY: 893 F.2d 1338 Unpublished Disposition

Effective Foreclosure Defense requires timing. If you time correctly, you can save your home. Homeowners presently in litigation must use injunctions to their advantage. Ignorance will not be to your advantage.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

In re James MILLER, Jr. and Pamala F. Miller,
James MILLER, Jr. and Pamala F. Miller, Appellants,
v.
LINCOLN TITLE COMPANY, Appellee.

No. 88-5687.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 30, 1989.
Decided Jan. 12, 1990.

Before WILLIAM A. NORRIS, REINHARDT and TROTT, Circuit Judges.

I. MEMORANDUM*

1 The Millers (“Debtors”) seek reversal of an order of the Bankruptcy Appellate Panel (“BAP”) denying the Debtors’ Ex Parte Motion for Order Setting Aside Default Order and dismissing as moot the Debtors’ appeal of the dismissal of their Chapter 11 petition. The Debtors base their appeal on two arguments: (1) the BAP erred in denying the Debtors’ Rule 60(b) motion to set aside the default judgment; and (2) the BAP erred in dismissing the Debtors’ appeal of the bankruptcy court’s order dismissing their Chapter 11 case on the grounds of mootness. We affirm the BAP’s order dismissing the Debtors’ appeal insofar as it relates to the automatic stay and the sale of the property, due to the mootness of that issue, and we remand to the BAP the issues of timeliness of the Debtors’ appeal to the BAP and whether dismissal of the Debtors’ Chapter 11 petition for lack of prosecution of their earlier Chapter 13 petition was proper.

II. STATEMENT OF FACTS

2 The Debtors filed a Chapter 11 petition on June 12, 1986. On March 9, 1987, the U.S. Trustee filed a motion to dismiss the Chapter 11 case or, alternatively, to convert it to a Chapter 7 case. On March 31, 1987, Lincoln Title Company (“Lincoln”) filed a motion to join in the motion to dismiss and its own motion for dismissal. Lincoln based its motion to dismiss on the Debtors’ previous Chapter 13 case that was dismissed for failure to prosecute.1 Lincoln asked the court to take judicial notice of the fact that the Chapter 13 was dismissed pursuant to section 109(g)(1) of the Bankruptcy Code.2 On May 12, 1987, the bankruptcy court dismissed the Debtors’ Chapter 11 case based on the Debtors’ ineligibility to file the Chapter 11 case under section 109(g)(1). The order of dismissal was entered on May 15, 1987, and the Debtors filed their notice of appeal to the BAP on May 28, 1987, two days after the ten-day deadline prescribed by Bankruptcy Rule 8002. The respondent objected on the ground that the appeal was untimely and the BAP filed a conditional order of dismissal on July 22, 1987, inviting the Debtors to file a written explanation showing legal cause why the appeal should not be dismissed. On July 23, 1987, the Debtors filed a motion in opposition to the respondent’s objection. On September 9, 1987, the BAP issued an order denying the motion to dismiss. The order did not specify the BAP’s reasons for denial.
3  While the Chapter 11 case was pending, Creditway of America (“Creditway”) filed a motion for relief from the automatic stay. On September 17, 1986, the bankruptcy court entered an order modifying the automatic stay. This order denied Creditway’s motion to lift the stay subject to the following conditions to be performed by the Debtors: (1) Submission of proof of insurance on the subject property; (2) filing of schedules and statements by August 27, 1986; and (3) filing of a plan and disclosure statement on or before September 29, 1986. The order also stated that if the Debtors failed to perform any of these conditions, Creditway could file a declaration of default or order for relief from stay.
4  The Debtors complied with the first two requirements, but did not file a plan and disclosure statement by the prescribed deadline. However, the Debtors delivered a request for an extension of time to the trustee on September 26, 1986. The Trustee filed the request on September 30, 1986. On October 9, 1986, Creditway filed a document styled, “Declaration of Jeffrey A. Paris and Order Terminating Automatic Stay,” based on the Debtors’ noncompliance with the order to file a plan and disclosure statement by September 29. The Debtors claim to have received this declaration/order on October 20, 1986. On October 24, 1986, the court granted the Debtors’ request for an extension of time to file the plan and disclosure statement until October 27, 1986. On November 24, 1986, Judge Fenning signed Creditway’s proposed order terminating the automatic stay, and on December 16, 1986, entered a default order terminating the stay. The Debtors allege that neither the court nor Creditway provided them with a copy of any signed order. The Debtors did not appeal the November or December order.
5  On January 7, 1987, Creditway conducted a Trustee’s Sale of the property. The property was purchased by an independent third party. The Debtors then filed numerous papers in the state courts as well as the bankruptcy court seeking to set aside the sale. All actions were unsuccessful. In the meantime, the municipal court granted a Writ of Execution, Money Judgment for and Writ of Possession of Real Property on the foreclosed property.
6  On July 27, 1987, the bankruptcy court declined to hear the Debtors’ Complaint to Invalidate Sale of Real Property filed June 1, 1987, due to lack of subject matter jurisdiction since the bankruptcy case had been dismissed. The Debtors then filed with the BAP, on December 2, 1987, an ex parte motion to set aside the default order under Rule 60(b). The BAP denied the Debtors’ motion and dismissed their appeal as moot on January 11, 1988. The panel clarified this order at the request of the Debtors on March 11, 1988, and explained that because the order lifting the automatic stay was never appealed and the property was subsequently sold, the appeal was rendered moot. Debtors then filed a notice of appeal to the Ninth Circuit on February 10, 1988.

III. ANALYSIS

7 The court of appeals reviews a decision of the BAP de novo. Both the court of appeals and the BAP apply the same standard of review to the bankruptcy court judgment, reviewing findings of fact under the clearly erroneous standard and questions of law de novo. See In re Burley, 738 F.2d 981 (9th Cir.1984).

i. The Automatic Stay.

8 We affirm the order of the BAP denying the Debtors’ Rule 60(b) motion and dismissing their appeal insofar as it affects the automatic stay. The issue of the automatic stay and the sale of the Debtors’ residence has been rendered moot by the sale of the property to an independent third party.
9  This circuit has held that where a stay pending appeal is not requested or is not granted, a party risks losing its ability to realize the benefit of a successful appeal. See In re Combined Metals Reduction Co., 557 F.2d 179 (9th Cir.1977); In re Sun Valley Ranches, Inc., 823 F.2d 1373, 1374 (9th Cir.1987) (“We have generally held that where an automatic stay is lifted, the debtor’s failure to obtain a stay pending appeal renders an appeal moot after assets in which the creditor had an interest are sold.”). Where the property has been sold to an independent third party, this circuit has held that the appeal is moot, because the court cannot grant effective relief, at least in the absence of the third party. See In re Royal Properties, Inc., 621 F.2d 984, 987 (9th Cir.1980) (“Once the orders have been performed, an appeal attacking the order is moot. Nor may the appellants attack the validity of the sale or the deed in this appeal. The purchasers of the property have not been made parties to the appeal, and we cannot grant effective relief in their absence.”).
10  In the instant case, the default order was not appealed and a stay was not requested. The Debtors claim that they did not appeal because they were not served with the signed default order within the time period for appeal. Nonetheless, because the subject property was sold to an independent third party pursuant to a bankruptcy court order, we cannot grant effective relief in a proceeding to which the purchaser is not a party. Thus, we affirm the BAP’s denial of the Debtors’ Rule 60(b) motion and its order dismissing the Debtors’ appeal insofar as it affects the automatic stay.

ii. Dismissal of the Debtors’ Chapter 11 Petition

A. Extent of Property Involved

11 The BAP dismissed the Debtors’ appeal of the order dismissing their Chapter 11 case based on the sale of the Debtors’ residence rendering the appeal moot. However, it appears that the BAP mistakenly believed that the only property involved in the Debtors’ Chapter 11 case was the Debtors’ residence. Because other property appears to be involved, we reverse the BAP’s dismissal. On remand, the BAP should determine whether the Chapter 11 case involved other property.

B. Dismissal Under 11 U.S.C. Sec. 109(g)(1).

12  The bankruptcy court dismissed the Debtors’ Chapter 11 petition under section 109(g)(1). This section bars an individual who was a debtor in a previous Title 11 case pending in the preceding 180 days from being a debtor under Title 11 if the previous case was dismissed “for willful failure to abide by orders of the court, or to appear before the court in proper prosecution.” The Debtors’ earlier Chapter 13 case was dismissed for “failure to prosecute” and their subsequent Chapter 11 petition was filed within 180 days of that dismissal. The appellees argue that the dismissal for lack of prosecution of the Chapter 13 proceeding acts as a bar to the Debtors’ Chapter 11 filing. The appellants vigorously disagree, arguing that the Chapter 13 dismissal was not based on a willful failure to prosecute and that since section 109(g)(1) requires the element of willfulness, they are not barred from filing the Chapter 11 petition. The BAP did not consider this issue because it dismissed the appeal as moot. Thus, on remand if the BAP concludes that the appeal is timely (see section C infra ) and that property other than the house is involved, it should also consider the issue of whether the dismissal of the Debtors’ Chapter 13 case for failure to prosecute served to trigger the 180-day filing bar of section 109(g)(1).

C. Timeliness of the Appeal to the BAP.

13  The untimely filing of a notice of appeal is jurisdictional. In re Nucorp Energy, Inc., 812 F.2d 582 (9th Cir.1987). However, Bankruptcy Rule 8002 avoids potential hardship by allowing deadline extensions. If a party does not file the notice of appeal or an extension within the ten-day filing period, he may still receive an extension upon request within twenty days of the deadline if he can show “excusable neglect.” 11 U.S.C. Sec. 8002(c). The Debtors did not actually request an extension of time to file the appeal before the BAP and the BAP order did not indicate whether or not the Debtors had shown excusable neglect. Thus, on remand the BAP should reconsider the issue of the timeliness of the Debtors’ appeal or provide an explanation of the basis for its earlier determination.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this disposition.
*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1  The Millers filed a Chapter 13 petition on November 7, 1985. On November 13, 1985, the court filed an order for the Millers to file a plan and statement, and an order to show cause why the case should not be dismissed. On December 2, 1985, a show cause hearing was held and the court dismissed the Chapter 13 petition for “failure to prosecute.” The Millers did not attend this hearing
2  Section 109(1)(g) states that an individual may not be a debtor under Title 11 if he has been a debtor in a Title 11 case pending at any time in the preceding 180 days if “the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution.” 11 U.S.C. Sec. 109(g)(1)

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

What Homeowners Must Know About Mortgage Foreclosure Mediation Program

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What is Mediation?
Mediation is a dispute resolution process in which an impartial person, a mediator, helps parties negotiatea mutually acceptable settlement. Mediation is non-binding, guided negotiations. Mediators do notdecide matters; rather they rely on the ability of the parties to reach a voluntary agreement without coercion.

What is the Mediator’s Role?
Mediators are non-judgmental, who listen to the parties and assist and guide the parties toward their own solution by helping them delineate and focus on the important issues and understand each other’s interests. Mediators may suggest creative and innovative solutions for the parties to consider. Mediators have no authority to impose an outcome or decide the outcome of a foreclosure action.Mediators are not permitted to give you legal or financial advice. Mediators’ focus settlement discussions, relaymessages, clarifications, questions, proposals and offers and counteroffers back and forth between theparties.

Who are the Mediators?
Mediators participating in the foreclosure mediation program are screened to ensure they have foreclosuremediation training in addition to basic mediation training.

Why Foreclosure Mediation?
Mortgage lenders do not generally want to own houses (especially in th
e current environment). Lenders are willing to talk with homeowner-borrowers aboutreasonable, practical solutions to bring aboutmortgage delinquency resolutions.

How Does Foreclosure Mediation Work?
Upon receipt of this Request for Foreclosure Mediation and Financial Worksheet by the Office ofForeclosure, the material will be distributed to court staff in the local courthouse and to the lender’s attorney. Local court staff will assign a mediator to your case and set a date for the mediation when the lender and homeowner-borrower must appear. Note. A request for mediation does not stay or otherwise delay the foreclosure action.

What Happens at a Foreclosure Mediation Session?
At the mediation session, you will meet with the mediator, the lender’s attorney and a representative of the lender (this person may appear by phone). The mediator will explain his or her role and will organize discussions about what arrangements you and the lender can agree upon that will allow you to keep your home. Commonly, mediators hold private caucuseswith each party to (1) focuses each party on thecrucial factors necessary for a successful resolution and (2) help each party analyze the strengths and weaknesses of their positions. If the mediation is successful, a foreclosure mediation settlement memorandum will be prepared by the mediator and signed by all parties.

What Are Some Possible Outcomes?
There are a number of possible solutions that you and the lender can explore. The solution will depend upon what you can afford (based on what your income and expenses are), what other resources you have, what type of loan you have, the amount you owe in arrearage and other factors that will be discussed during the mediation. Each lender has a slightly different loss mitigation program. However, every lender will require that you exhibit a reasonable ability to repay the modified monthly mortgage loan payment. If you cannot show ability to pay, then your lender has no incentive to do a workout. The following are some possible solutions:

Reinstatement: Your lender agrees that all amounts required to bring your loan current can be paid (including late fees, attorney fees, taxes, insurance, et cetera) and once these amounts are paid, the foreclosure will be dismissed and you will be back on your regular payment plan.

Repayment Plan: An agreement to resume making your regular monthly payments, plus a portion of the past due payments each month until you are caught up (i.e., the lender raises the monthly payment for a set period of time until the arrears amount is caught up).

Forbearance Agreement: Forbearance agreements are plans that allow borrowers to repay a loan delinquency over time. Regular monthly payments are made according to your loan agreement, and an additional monthly payment is made each month that is applied to the delinquent amount.
Once the delinquent amount is paid in full, the normal payment amount resumes. It fully reinstates the loan. A forbearance plan may include one or more of the following features: (a) suspension or reduction of payments for a period sufficient to allow the borrower to recover from the cause of default; (b) a period during which the borrower is only required to make his/her regular monthly mortgage payment before beginning to repay the arrearage; (c) a repayment period of at least six months and (d) allow reasonable foreclosure costs and late fees accrued prior to the execution of the forbearance agreement to be included as part of the repayment schedule. However, they frequently may only be collected after the loan has been reinstated through payment of all principal, interest and escrow advances.

Extension Agreement: This is an agreement in which you pay a portion of the amount of your delinquency, and the remaining portion of the delinquent amount is added on the end of your loan.

Loan Modification: An agreement that permanently changes one or more terms of your mortgage. For example, (1) extend amortization (i.e., extending the number of years you have to repay the loan, such as, converting a 30-year loan to a 40-year loan), (2) converting a sub-prime 2-, 3- 5-, 7-year ARM loan into a fixed rate loan, (3) reducing the mortgage interest rate, (4) adding missed payments to the existing loan balance.

Loan Guarantee Partial Claim: If your mortgage is insured, your lender might help you with a one-time interest-free loan from your mortgage guarantor to bring your account current. You may be allowed to wait several years before repaying this loan.

Time to Refinance: Provided you have a reasonable prospect of arranging to refinance the loan, your lender may agree to some period during which it will not schedule a sheriff’s sale.

HOPE for Homeowners Program is a program for borrowers at risk of default and foreclosure and provides new, 30-year, fixed rate mortgages that are insured by the Federal Housing Administration (FHA). Refinancing without the benefit of a government program may be impractical for most homeowners. In today’s falling market, home values are often less than the amount of the original loan and refinancing lenders generally will loan no more than 70-80% of the value of the home.

Reverse Mortgage: Reverse mortgages, or home equity conversion mortgage (HECM) loans, are commonly used to help senior citizens tap into their home equity for retirement. As a foreclosure prevention device, you generally need to be age 62 or older and have adequate accumulated home equity.

Principal Reduction: Loan principal is reduced.
This may be possible if you have a negative amortization loan (you are paying less than is necessary to full amortize (payoff) the loan during the loan’s term) and the lender is willing to reduce principal to the original loan amount. A principal reduction program may be agreed upon in exchange for a shared appreciation mortgage (SAM). A SAM is a fixed rate, fixed term loan. In exchange for a lower interest rate, you agree to give up a portion of the home’s future value — the difference between what it is worth now and what it will be worth in the future.

Principal Forbearance: Forbearance of the repayment of part of the principal interest-free. The actual principal amount due and payable at maturity of the loan (or sale of the property) is the original unmodified principal amount, less any and all periodic principal payments that you make until maturity or sale. The loan payments only partially, not fully, amortize the loan. Contrast with Principal Reduction.

Mortgage Loan Assumption: Most mortgage loans include a “due on transfer” provision. If this provision is waived by the lender, it allows a qualified individual or entity to assume the loan’s payment obligations. This is often used to facilitate the sale of the property to a third party. The original lender may or may not release you from personal liability on the note if the individual or entity assuming the loan’s payment obligation defaults.

Deed in Lieu of Foreclosure: With a deed in lieu of foreclosure, you voluntarily execute a deed conveying your property to the lender in exchange for the lender canceling, in full or partial satisfaction, the debt owed on the loan. The lender often will agree to forgive any deficiency (the amount of the loan that isn’t covered by the sale proceeds) that remains after the house is sold. The lender will also agree not to initiate foreclosure proceedings or to terminate any initiatedforeclosure action.

Short sale: A sale for less than what you owe on the mortgage loan. Lenders may allow a home to be sold at a loss (consequently, the term short sale), because a short sale is nonetheless preferable to foreclosure. Foreclosure exposes lenders to potential substantial loss for litigation costs, carrying costs, including real estate taxes and insurance, and low forced sale bids or low resale prices. A short sale may be beneficial when a lender agrees to relieve you of liability for any deficiency (waive suing for a deficiency).

Voluntary Surrender/ Cash for Keys: Lenders may offer homeowners money to leave the home voluntarily without a post-foreclosure judgment eviction, if the house is in relatively good condition and undamaged.

What Happens If a Settlement Is Not Reached?
If mediation is unsuccessful, the foreclosure action will continue, ultimately leading to a sheriff’s sale, unless of course, YOU COMMENCE LITIGATION OR BANKRUPCTY IMMEDIATELY!

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

Wrongful Mortgage Foreclosure Monetary Awards – Case in Review

CASE IN REVIEW 1:

Jury awards $5.4 million to couple after finding fraud in foreclosure case

Houston Chronicle  |  December 9, 2015   Jury awards couple $5.4 million in foreclosure case against Wells Fargo and its mortgage servicer.  David and Mary Ellen Wolf were several payments behind on their home mortgage and knew that foreclosure loomed.  They were puzzled, though, when a foreclosure notice came early in 2011 from Wells Fargo because they hadn’t done business with that bank. Click Here to Read More

CASE IN REVIEW 2:

NY Federal judge slams Wells Fargo for forged mortgage docs

Judge Robert Drain has a message for Wells Fargo: “Forged” foreclosure documents don’t cut it in New York’s federal courts. Click Here to Read More

 

 

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