How Homeowners Can Win On Appeal in Foreclosure Cases

The bottom line in trial court actions defending foreclosures is that generally whatever you’re thinking about your defense, you need a little more than that. On Appeal, you need a lot more than what you are supposing will present the foundation for an opinion that reverses the trial court.

I often hear lawyers who are losing in trial court say something like “at least we got it on the record,” implying that on appeal the result will or could be different. That is incorrect. Unless you are talking about procedural error, the fact that you managed to have your evidence or your argument placed in the court record is the opposite of a good foundation for an appeal.

The first thing you should know is that you must identify the order from which you are appealing. “We don’t like this ruling” is not a basis for appeal. You must point to a specific order by date and name the judge. And you must do that in a notice of appeal that is properly and timely filed. Failure to do so is the first reason why homeowners fail on appeal. From the point of view of the appellate court, your appeal didn’t succeed because you didn’t appeal. Without a timely filed notice of appeal in proper form and properly filed and served, you have not appealed. And it is universally true that there are no excuses accepted as to time limits.

Another way to waive your rights on appeal is a failure to produce a court record. It does not automatically go to the appeal court in most jurisdictions. Specific arrangements and payments must be made to the clerk of the trial court before the record is prepared, indexed, and sent to the clerk of the appellate court. In your brief, you must accurately cite specific items or transcripts (Page and lines) in the court record. there are ways to supplement the court record but that goes beyond the scope of this article.

A timely filed Motion for Rehearing generally tolls the time for the judgment to become effective and also tolls the time for filing the notice of appeal, but you should check both local rules and local counsel to be sure of that. Orders that grant Motions for Rehearing are usually on the endangered species list. Motions for reconsideration do not have the same effect as a Motion for Rehearing but in some states, the two terms are reversed.

An appeal is not an opportunity to try the case again. An appeal is strictly limited to the issue of whether the trial judge committed reversible error. You should also remember that just because the trial judge committed some sort of error, that is not necessarily grounds for reversal. Broadly speaking, reversible error means some procedural error that caused the trial court to arrive at an unauthorized decision or conclusion. The fact that the judges on the appellate panel might have decided the case differently is never grounds for reversal. But if the outcome offends the sensibilities of the majority of judges on the panel, they are more likely to find a way to find reversible error.

The most likely win on appeal occurs when the trial judge grants summary judgment. Trial courts almost never get reversed for refusing to grant summary judgment. But they often get reversed for granting summary judgment, a fact that is often pointed out by attorneys for homeowners with usually good effect.

a Court must inform pro se litigants that, on a motion for summary judgement, “any factual assertions in the movant’s affidavits will be accepted by the district judge as being true unless (the opposing party) submits his own affidavits or other documentary evidence contradicting the assertion.” 963 F.2d at 456 —

{Editor’s Note: That said, all litigants are supposed to know and follow the rules as written or file a motion for some relief from the rules. While this is frequently the doctrine in most ocudts, the failure to abide by this specific doctrine or rule has not generally been the basis for a successful appeal}

A summary judgment can only be granted if there are no material issues in dispute, and therefore the only thing left to do is for the judge to apply the law. The fact that you have denied the facts of a foreclosure complaint is not a good reason for the judge to deny summary judgment and in fact, without more, clears the path for him/her to enter an order granting summary final judgment.

But if discovery is “outstanding” then if the issues in discovery are material and relevant to the claim, the judge may not enter summary judgment, regardless of how much he or she would like to clear his or her docket. The trick question is “what is outstanding?”

The courts are somewhat divided on that point, but one thing is sure: if you merely serve timely and proper discovery demands relating to the core issues of the claim, that is probably not enough to stop Summary Judgment. If the time has not yet run yet for answers (a tactic often employed by foreclosure mills), then the court is committing an error by entering summary judgment.

If the answers to discovery were due and were not answered or not answered properly (the usual case in foreclosures), then it is probably an error for the court to enter summary judgment — particularly if the homeowner has filed a motion to compel. If the court has already heard the motion to compel and ordered compliance with discovery, it would be dead wrong to enter summary judgment.

And yet judges ignore the rules when they are on a rocket docket to get their desk clear. They will enter erroneous orders like summary judgment despite the clear doctrines in their jurisdiction because they believe it falls under the Latin doctrine of damnum absque injuria (no harm done).

And the reason for that and sometimes appellate decisions approving such clear violations of due process is that there is a sub silentio (silent, hidden) assumption at play. The assumption is that there was a loan that was sold and securitized. If you accept that premise then the fact that the claim says the homeowner missed a scheduled payment and the homeowner admits that is sufficient to enter judgment unless the homeowner can alter the judgment by showing failure to allocate payments correctly.

So THAT is why I keep saying that all winning cases for homeowners, including appeals, at least raise the specter that the claimant might not have a claim as recognized by law or that there is insufficient evidence to conclude, more likely than not, that the claim exists.

Many people have tried to get past motions to dismiss or motions for summary judgment as they pursue the goal of proving that the entire securitization infrastructure is a scam, which it is. But the ones who win aim much lower than that. they merely aim to prevent the claimant from putting on evidence that the claim exists, that they own it and the party submitting an affidavit or testimony is authorized to do so.

The winning goal is to undermine the claim not disprove it.

Once you get to the point of writing the brief — get to the point. This is not an opening or closing argument. And by the way, if you want oral argument in many jurisdictions you must now file a separate motion to allow it explaining why you want it. The presentation of issues on appeal should identify specific findings by the court that procedurally wrong or in direct conflict with existing law. The presentation of issues on appeal must be extremely short and generally speaking, should not include more than 3 issues. So choose which ones you want to identify.

Here is something I recently wrote:

There are two issues presented to the court:

  1. ISSUE #1: Did the trial court err when it extended the statute of limitations? (Sub issue: can the Adverse Possession statute be applied to foreclosure actions?)
  2. ISSUE #2: Did the trial court err by entering Summary Final Judgment with both Discovery and a Motion for Sanctions Outstanding?

There is an art to presenting issues on appeal. The general rule is that you want to express the issue in such a way that the appellate panel will at least initially agree that you have a valid issue on appeal.

Keep in mind that clerks are the first people who read the appeal. They are usually young lawyers who are following the wishes of one or more judges on the panel, but because they see it first, their impression might determine the entire trajectory of the appeal. Also keep in mind that that thousands of appeals are filed in most appellate courts, most of them relating to criminal cases where these takes are higher than ones presented in civil cases.

Because of heavy caseloads, it is often the case that the brief is never read in its entirety. Based upon interviews I have conducted with clerks and judges it is safe to say that they will definitely read the issues on appeal and probably read the conclusion. The rest is variable skimming at best.

Use a grammar checker and a spelling checker. This is a pet peeve of most appellate courts. And lastly, most courts have specific rules regarding fonts, font size, word or character limitations, and page limitations. Check with the clerk of the appellate court to make sure you know the latest local rules. 


Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

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