My property was fraudulently forclosed upon and sold to a third party purchaser. Im suing the foreclosing entity and the new owner. I commenced a lawsuit against the foreclosing entity over a year and the case is still pending in district court (they foreclosed during litigation). I sued the alleged new order after they filed a petition for Writ of Possession in Magistrate Court. Both cases are in district court, are consolidated, and still pending. I filed a "Notice of Ongoing Federal Lawsuit" in the Magistrate Court where the Writ of Possession is pending, and the petition was stayed because of it. Later the attorney for the alleged new owner filed a "Motion to Compel Payments of Rents" and I filed a "Motion for Sanctions for frivolous filings" because Magistrate Writ is stayed due to pending federal case. During the hearing for those two motions, the court vacated the stay, denied both motions, and issued the Writ of Possession. Keep in mind, THIS CASE IS STILL PENDING IN DISTRICT COURT! Is that legal and what can i do to vacate that judgment because it is void because Fed court has subject matter jurisdiction...
Country relating to Question: United States
State (if USA): Georgia
Thank you for the post, I am happy to assist you by answering your questions. You would need to file a motion to vacate the judgment for the writ to have the matter remanded. What stage is the federal claim in?
Beginning. I've submitted an abundance amount of evidence in support of my claims and they've filed motions to dismiss. We are all still waiting for the judge to respond. Do I file the motion to vacate judgment in the Magistrate Court or Federal Court? Also, do you have an example of a "Motion to Vacate?" Also, when I file this motion, how soon will it be remanded because I was given 10 days (9 days left) to vacate my house.
You would file your motion to vacate in the magistrate court and if unsuccessful with the Magistrate then you would appeal the Magistrate's decision to the higher court. Here is a sample motion to vacate:http://www.scribd.com/doc/44273890/Foreclosure-Emergency-Motion-to-Cancel-Sale-Vacate-Final-Judgment-and-Set-Aside-Defaultalso, here is a great guide on how to draft your motion: http://www.lsnj.org/PDFs/Foreclosure.pdf It is written for NJ but is in large part applicable and undeniably useful.
Thanks! a few more questions!
1. On what grounds am I asking for judgment to be vacated
2. When you say appeal to "higher court," would that be State or Superior Court?
1. The request to vacate the judgment would be based on the fact that there still exists a material dispute as to the legality of the foreclosure, and unless and until that issue is resolved by the federal court, it is improper to grant them the right to act as though the federal court has rules in their favor and the legality of the foreclosure established. 2. You would appeal to the state court. For your reference, see http://www.georgiacourts.org/councils/magistrate/public%20forms/mag%2012-01%20notice%20of%20appeal.pdf
Okay, I was told I had 7 days to appeal the order. what if he doesn't respond to my motion in time? have I lost my chance to appeal or no?
If who does not respond to your motion? The court?
Yes. When I ask for the motion and the Magistrate Court doesn't respond in the time frame for me to appeal, does the time start over when he finally decides on the motion or not? Also, does the "motion to vacate" suspend the active "writ of possession" in case the Magistrate Court doesn't respond in time?
A motion for reconsideration does not toll the period for the filing of an appeal. The motion to vacate suspends the active writ of possession only if the court orders the same. This is why your motion to vacate would be titled a Motion and Declaration to Vacate Judgment and Stay Enforcement of Writ of Possession. The enforcement would be temporarily stayed pending the court's ruling on your motion.When you file your motion, give the originals to the clerk and ask the clerk to give you a certified copy of the Order to Show Cause and To Stay Enforcement of Writ of Possession. There will be a charge for the certified copy, you would then take the certified copy of the order to the sheriff’s office so that your eviction would be halted.
You are HEAVEN SENT! Okay, hopefully last question:
In my motion, will I let them know they don't have subject matter jurisdiction because the district court has it, and will i have to supply a memorandum of law an a copy of the pending federal court case as evidence?
Yes, in your motion you would claim subject matter jurisdiction, material facts in dispute(if applicable) and challenge the appropriateness of the ruling as a matter of law. the most compelling motions often have the support of a memorandum of law. you would attached the copy of the federal court papers as exhibits.
I'm sorry but i have another question...just for clarity...
Let's say I file the Motion to vacate and the eviction is halted. If the halting period is more than 7 days and the judge takes more than 7 days, only to respond with a denial. Will I still be able to appeal his decision or no?
Yes, if you submitted the appellate paperwork within the period before the expiration of the period to appeal to the state court. As we discussed before, the filing of the motion to vacate does not toll the period to appeal.
So, I need to appeal AND file motion to vacate? Will I give the appellate court a copy of my motion in support of the appeal?
Yes, you need to appeal and file the motion to vacate. I am not certain I understand your second question, but are you sure that you should proceed pro se in this matter? From your description, the home is rather valuable and as a novice you will be litigating against experienced counsel. I would hate for you to lose based on procedural errors.
I've looked for counsel, but none will help me with the truth. To the best of my ability, I'm studying federal law, FRCP, and presiding court cases. I've been doing well in the distict but i don't study state law and that's how I got jammed. You have been a wonderful help and i appreciate you SOOOOO much! May God bless you!
Thank you Dorothy, please remember to rate my answers positively if I answered your questions. also, consider pro bono assistance sources: see http://www.nga.org/cms/home/nga-center-for-best-practices/center-publications/page-other-publications/col2-content/main-content-list/foreclosure-mitigation-assistanc.html
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