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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 114704
Experience:  Attorney experienced in commercial litigation.
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FOR LAW EDUCATOR ESQ> ONLY. 1. Order came out on the

Customer Question

FOR LAW EDUCATOR ESQ> ONLY.
1. Order came out on the Foreclosure case after two months since the argument on my motion to strike it and it was ordered marked off, stating that the plaintiff part of the case is decided already that because of the Count two of the foreclosure complaint asking for fees and interest for the plaintiff’s attorney which they said was the only thing on appeal, the foreclosure complaint is marked off until the determination of the appeal.
2. All of a sudden the motion to terminate stay that the plaintiff’s attorney filed since over a year ago and that I responded to with opposition and memorandum of Law but were never acted on by the Court were now given order on without any motion from anyone for order to be given on it. I received that order yesterday, just less than a week after the foreclosure judgment that states that unless there is a termination of stay from the appellate Court the foreclosure case cannot go on. The order states “OTHER” that there is no stay in place. (I believe the Court is fighting me more on this case than the plaintiff.)
3. If the Court says that the original case has been decided on appeal and therefore there is no stay like the judgment from the foreclosure case indicated, there should be automatic stay on the part that is on appeal as the foreclosure case motion to strike order indicated, The question is, now that the foreclosure case is marked off what happened after this appeal is decided and the plaintiff prevails, Do I have to recall the motion to strike or the plaintiff has to refile the complaint?
Submitted: 7 months ago.
Category: Consumer Protection Law
Expert:  Law Educator, Esq. replied 7 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I am afraid that now the court seems to be saying that the plaintiff is going to be granted their right to proceed forward and is going to allow them to go after you now for attorney's fees and costs. The court really is not fighting you, it is just that it seems the court is saying that now the appeal is over the judgment is entitled to be enforced.
What happens now the appeal is over, the court is going to allow the foreclosure to proceed I am sorry to say as the court is saying you lost.
Customer: replied 7 months ago.
I just got judgment on the motion to strike the foreclosure case last week and it was Order off until the appeal is over. because of the second count that is still on appeal and that appeal is still pending and I am still writing my brief. There is automatic stay of execution on the new appeal on the attorney fee and that attorney fee is included in the foreclosure complaint. Am I the one to reclaim the motion to strike or the plaintiff have to refile the complaint when the time comes to restart the foreclosure case. (Regular on second appeal)
Expert:  Law Educator, Esq. replied 7 months ago.
Thank you for your reply.
You would have to reclaim the motion to strike once the time comes to restart the case, because once the appeal is done, the case starts back automatically.
Customer: replied 7 months ago.
What happens is I do not reclaim it?
Expert:  Law Educator, Esq. replied 7 months ago.
Thank you for your reply.
Then the other party would end up winning, which appears from the judge's ruling above is going to happen even if you do reclaim it.
Customer: replied 7 months ago.
The plaintiff will automatically win or will file motion for default. I am also confused about the other order that came after the motion to strike was ordered off which says that there was no stay on. Does this new order nullify last week's "Off" order. If it does so that I can appeal it because practice book says that there is automatic stay of execution immediately appeal is filed unless a motion to terminate stay is granted. Since the new order did not say it grants the motion there is automatic stay on the part that is on appeal.
Expert:  Law Educator, Esq. replied 7 months ago.
Thank you for your reply.
Well, more likely they will come back and move for default or summary judgment. The new order basically denied your motion to strike, so you can appeal from the final order and seek your stay on appeal
Customer: replied 7 months ago.
Do I appeal to the Superior Court or to the appellate Court?
Expert:  Law Educator, Esq. replied 7 months ago.
You would appeal to the appellate court.
Customer: replied 7 months ago.
The new order denied my motion to strike or it means I have no stay of execution and I should reclaim the motion that was marked off. There are other issues in the motion to strike like lack of indispensable party and filling the complaint wrongly. I can reclaim the motion and then appeal the order that says there is no stay of execution.
Expert:  Law Educator, Esq. replied 7 months ago.
Thank you for your reply.
If the new order denied your motion to strike then it is dead. The motion is over, you can reclaim the other one if there are other pending issues, but do not be surprised for the judge to just order that dismissed as well.

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