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CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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I am a Defendant-Appellant in a mortgage foreclosure case.

Customer Question

I am a Defendant-Appellant in a mortgage foreclosure case. The Trial Court granted Summary Judgment in favor of the Bank and denied my Motion to Reconsider; to which I promptly filed Notice of Appeal. Then, I received an Eviction Letter from the Sheriff's Office; so I filed an Emergency Motion to Stay with the Trial Court. The Judge continued hearing for two weeks and ordered that I place a bond to stay enforcement pending Appeal; however, there is no way possible that I could place an over $200,000 bond by August 31st. Is bond required in this situation or is the Judge just being difficult?
Submitted: 2 years ago.
Category: Legal
Expert:  CalAttorney2 replied 2 years ago.

Dear Customer,

I am sorry to learn of your situation. Unfortunately, this kind of bond is not unusual. Keep in mind, this is a bond that is being asked for (you are not being asked to come up with this amount in cash). You can contact a bonding firm for pricing on this dollar amount to see what the cost of this would be for your matter.

Unfortunately an appeal does not stay enforcement, and the court cannot permit you to retain possession of the property after an adverse judgment without adequate protection in place for the opposing party (this is why the bond amount is so high).

Customer: replied 2 years ago.

Is a bond required even in the event that the Plaintiff bought the property at Sale?

I would be more understanding if a third party was the purchaser; but if the Plaintiff was the purchaser, and they have obtained a personal deficiency judgment, and they are aware that this is our primary residence, it seems silly that they would require a bond pending Appeal -- the house won't grow its own pair of legs and run away.

Expert:  CalAttorney2 replied 2 years ago.

Yes. The courts are protecting the "Judgment Creditor" (they are not looking at this as a mortgage company, large bank, or a single investor, it is simply a "judgment creditor" - although if they are viewing it in that way at all, they are doing so in your favor, as they do not have to permit you the opportunity to stay the sale at all (that is discretionary)).

(You would be shocked at the damage that some judgment debtors do to their homes (they may not grow legs and run off, but unfortunately there are judgment debtors out there that have taken it upon themselves to make things worse for the rest of us by horribly damaging their homes in retaliation, and a bond does protect against that)).

Customer: replied 2 years ago.

OK, fair enough for the sake of argument, but the Court also has the discretion to either approve or disapprove the Sale based on many factors, including "justice having been done".

So, in your opinion, did the Court properly approve the Sale based on this timeline:

  • Final Judgment was entered January 29th;

  • I filed my Motion to Reconsider on February 27th, and the next available hearing date was May 21st;

  • Sale occurs on May 1st, and Plaintiff files their Motion to Approve sometime thereafter;

  • On May 21st, the Court continued my Motion and the Plaintiff's to July 2nd;

  • On July 2nd, the Court denied my Motion and granted Plaintiff's Motion.

Should the Court have waited an extra 30 days or so because I was going to file an Appeal anyway, or was that proper and Plaintiff rightfully seeks possession 30+ days after?

Expert:  CalAttorney2 replied 2 years ago.

No, that was proper (the judgment creditor has a right to enforcement as soon as the judgment is entered, there is no requirement to wait, even if the judgment debtor plans on appealing).

Customer: replied 2 years ago.
What will happen if I were to win the Appeal?
Expert:  CalAttorney2 replied 2 years ago.

If you post the bond, the terms of your bond agreement will control the return (most will refund the majority of your deposit).

If you do not post the bond and the property is sold, you will be compensated with cash. (This assumes not only that you prevail in your appeal, but also prevail in any subsequent trial court proceeding - most appeals result in the appellate court finding that the court made an error, and sending the matter back to the trial court for a new decision based on the correct interpretation, so the appellate court does not directly reverse the trial court, it simply gives the court instructions to review its earlier decision based on a correct interpretation of the law, so you are quite a few steps away from having a different result).