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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 29576
Experience:  JA Mentor
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Can I stop the court from disbursing the sale proceeds to

Customer Question

Can I stop the court from disbursing the sale proceeds to the plaintiff pending appeal?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 1 year ago.

Welcome and thank you for using JA! Which State does your question pertain to? Can you provide me with a little more background?

Customer: replied 1 year ago.
Florida. I agreed to a consent final judgment of foreclosure in exchange for an extended sale date, a waiver of deficiency and an opportunity to apply for loss mitigation. Plaintiff's counsel showed me Page 2 of the proposed order with the handwritten changes, but not Page 1 wherein he inflated the loan balance and added undocumented fees totaling $448,000, so the judgment was for $1.1 million and I only owed $653,000 on the loan (inclusive of unpaid interest). I moved to vacate the judgment but plaintiff argued that I can't complain of an order I consented to. p.s. My signature or initials are not on the order.
Expert:  Attyadvisor replied 1 year ago.

Let me opt out as I will be unavailable due to a medical appointment. I will check back when I am available to make sure you received a response.

Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

As a general rule, a person cannot appeal a judgment that they agreed to, because the standard on appeal is "Did the judge make a mistake?" The judge didn't make any mistakes in a consent judgment. What you can do is file a Motion to Vacate Judgment based on fraud, in that what was filed was not the same document that you signed. If the judge declines your Motion to Vacate, THEN you could appeal the denial of the motion.

With that said, yes, you can also file a Motion to Stay. The standard that you have to show is that you're likely to prevail on the merits of the appeal, that you will be irreparably harmed if the house is sold while the appeal is pending, and that the injury to you if the judgment is not appealed outweighs the potential harm to the other party in the delay. Since they'll eventually get their money but you'll be out your home if the sale goes through, the balance of equities tends to weigh in your favor.

If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

Customer: replied 1 year ago.
I filed a combined objection to sale and motion for relief, alleging 5 specific items of fraud (including the inflated judgment amount). The judge determined that my attorney COULD have reviewed the judgment prior to its submission, so he denied my motion without allowing me to present my documentary evidence of fraud. I appealed this decision, but I did not realize that I had to submit my initial brief within 15 days (not 70) of giving notice, and the appellate court now ordered me to show cause why the appeal should not be dismissed for lack of jurisdiction.Meanwhile, the trial court heard my objection to the sale but it did not immediately render a decision. I filed an emergency motion to stay issuance of title pending appeal, and submitted it via e-courtesy, but the judicial assistant never advised me as to the status of the emergency motion; but the judge denied my objection to sale and issued the certificate of title.I am no longer hopeful that I will be able to stay in my home, despite the fact one of the provisions of the consent order was that the plaintiff would review my application for a loan modification under HAMP or similar guidelines. At the objection to sale hearing, the plaintiff had a witness testify that I never submitted an application, even though the lender was required by a federal court order and federal law 12 CFR Section 1024.41(g) to "reach out to homeowners" and "offer and facilitate loss mitigation efforts prior to sale."I'm not too hopeful that I will be able to remain in my home, so I want to focus on the court not disbursing the $1.1 million fraudulent judgment amount to the plaintiff who is owed only $653,000 according to their own records.
I realize this is a lot and I'm very grateful for your help thus far.
Expert:  Lucy, Esq. replied 1 year ago.

I'm sorry to hear that all this happened.

What are your questions about these additional facts?

Customer: replied 1 year ago.
Can I ask the court to modify the judgment total and require the plaintiff to verify the amount it is owed?
Expert:  Lucy, Esq. replied 1 year ago.

Yes, you can. I'm sorry - it sounded like you'd already tried that and the judge denied it.

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