When a homeowner has a judgment issued in favor of the lender during a foreclosure trial, it can seem hopeless. Too many homeowners simply wait for the foreclosure sale and pack up their bags and leave. However, this doesn’t have to be this way. There are things a homeowner can do to keep their home, even if a judge has already granted the foreclosure.
Like any trial matter, homeowners may wish to appeal the judge’s decision. To do this, they must speak to a Florida foreclosure defense attorney who can give them the best chance of success with their appeal.
How to Appeal a Final Foreclosure Decision
Once the court has issued a judgment against the homeowner, the court clerk will record the judgment in the court docket. This judgment is then considered final 10 days after it is entered, according to Rule 1.530 of the Florida Rules of Civil Procedure. That doesn’t mean, though, that homeowners cannot appeal the decision, even if those 10 days have passed.
If the homeowner believes the judge made an error, or the judgment was not entered correctly, they can then file for a review of the final decision with the appellate court. In this court, several judges will review the case and determine if there was a legal mistake that warrants a reversal of the original judge’s decision.
Grounds for Appeal
Unfortunately, not all homeowners who have lost their initial foreclosure trial can appeal the decision. To do this, there must be actual grounds for filing an appeal. Luckily, there are several common grounds for appeal that can be used.
The first is legal standing, a requirement for anyone who wishes to file a foreclosure lawsuit against a homeowner. Legal standing means that the plaintiff, or person bringing the lawsuit, has the right to do so. Original lenders may have legal standing to file a lawsuit, but only if they haven’t sold off the mortgage as part of a package to investors. Lenders often do this and when they do, they no longer have legal standing to file a suit.
Promissory notes are also often lost by lenders. This is the document you signed promising to make your mortgage payments on time every month. These promissory notes must be included with the lawsuit at the time the suit is filed. If they are not, a trial judge may still allow the case to proceed if the plaintiff finds the note and enters it at a later date. Although the lower court may accept a late note, appellate courts rarely do. If a lender has lost a note, the appellate courts will likely determine that the plaintiff did not have the standing to file the lawsuit and as such, they will overturn the original decision.
Like any other civil lawsuit, the plaintiff must also show that they incurred damages, or losses, as a result of the defendant’s actions. In foreclosure lawsuits, the damages are typically the amount of money not paid in mortgage payments. To prove these damages, the lender must file an Affidavit of Indebtedness, which is a sworn document. There are specific formalities that go along with filing these affidavits. If the affidavit is not properly filed, homeowners can appeal the trial decision based on improper evidence.
Other evidence in foreclosure lawsuits includes proper business records. A lender must present these to the court as legal evidence to prove their case. Many homeowners assume that banks and other lenders have impeccable record-keeping, but that’s not always the case. For example, a bank may not be able to locate a person with proper knowledge of whether or not documents are authentic. When that is the case but the lender still wins at trial, that is a legal error and homeowners can appeal that decision.
You Must Act Quickly
If you want to file an appeal based on a foreclosure judgment issued against you, it is imperative that you act quickly. Borrowers only have 30 days from the date the final judgment is issued to appeal the decision. If this time passes and the borrower has not filed an appeal, they are barred from doing so in the future.
There is another reason it’s important to act quickly when you want to appeal a foreclosure judgment. This is because firstly, you should speak to a Florida foreclosure defense lawyer if you haven’t already. After you find an attorney, they need as much time as possible to review your case. In order to appeal the decision, your attorney will need to find legal grounds for your appeal. This sometimes takes time because extensive research is often required to create an argument for appeal.
Once you’ve found an attorney and they have determined you have grounds for appeal, they must then prepare an appellate brief. This is the document your attorney will file with the appellate court stating the error or mistake that was made in the lower courts. Preparing this brief can also take time.
Another reason it’s important to work with an attorney when appealing a foreclosure judgment is that you may not have to appeal the decision at all. A lawyer can advise on whether it is possible to file a motion to vacate the foreclosure judgment with the trial court judge. These motions state that there was either a mistake made during trial, or new evidence has been found that’s pertinent to the case. These aren’t possible in every foreclosure case, but an attorney can determine whether it’s a good fit for yours.
Want to Appeal a Foreclosure Decision? Speak to Our Florida Foreclosure Defense Attorneys
While it is possible to appeal a foreclosure judgment in Florida, the process is difficult. You must also act swiftly, which can make it even more challenging. If you’ve had a foreclosure judgment issued against you, it’s important you speak to our Fort Lauderdale foreclosure defense attorneys at Loan Lawyers today. We know how to challenge judgments that were made in error, and can give you your best chance of success with your appeal. Call us today at (954) 523-HELP (4357) for your free consultation so we can review your case.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 2,000 homes from foreclosure, eliminated more than $100,000,000 in mortgage principal and consumer debt, and have recovered over $10,000,000 on behalf of our clients due to bank, loan servicer, and debt collector violations. Contact us for a free consultation to see how we may be able to help you.