Don’t wait until the end: Interlocutory appeals succeed where the issues are narrow

Aggressive litigation means basically that the lawyer or pro se litigant uses every tool in the box to force the opposition onto its heels or out of the courtroom. Each state has its own rules and laws governing interlocutory appeals. Those are appeals that take place before the case is over. And as I said last night on the Neil Garfield Show, the name of the game in foreclosure defense is kicking your opposition out of the courtroom as early as possible — before getting mired down in a prolonged war.

In general, interlocutory appeals are allowed when the trial or BKR judge makes a decision that essentially negates a large part of the case for reasons that are clearly erroneous. You must be specific in both the issue you are appealing and your argument or reasons for bringing this as an interlocutory appeal instead of waiting for the end of the case.

You should always look for ways to terminate the case early because it is the difference between night and day. A case that ends early could involve only a few thousand dollars and a few months’ time. A case that ends up in a long-term war and costs tens of thousands of dollars. Homeowners must be prepared to pay for the work that needs to be done — not merely expect it because they paid a $500 retainer. This work will cost no less than $7500 with any reasonably competent local attorney — even with assistance from my office.

One of the interesting facts that make tactical decision-making so important is that there is a statistical anomaly between the normal appellate process and the interlocutory appellate process. For one thing, they nearly always produce an early result. For another, particularly in the Federal Bankruptcy Court, the statistics show a much higher rate of success when the appeal is made to the Federal District judge instead of the BAP or the Circuit appellate court.

Here is a recent analysis I transmitted to a prospective client:

I MIGHT be able to help. If the order of denial was recent and you have a record you might want to consider an appeal. In your case it could be an immediate appeal. It is called an interlocutory appeal.

There are three avenues for appeal.
(1) Appeal to Federal Circuit Appellate court where the likelihood of success is virtually zero.
(2) Appeal to Bankruptcy Appellate Panel, where chances are somewhat improved. and

(3) appeal to Federal District Judge in the same court where the bankruptcy court made the wrong ruling. Statistics show that many bankruptcy judges agree that the chances of success are around 50% which vastly exceed successful appeals in all other cases.

People do not realize that BKR judges have limited jurisdiction and it might well be that the BKR judge went beyond her authority when she ruled against you. But in all events, if she was clearly wrong then you have the conventional reasons to appeal. And District Court judges are generally happy to assert themselves over the “lesser” BKR judges who at one time (when I started practicing) were not even considered judges.
I can review the situation if you want. I won’t appear as an attorney of record but I can write everything and prepare you for an oral argument in front of the Federal District Court judge if an appearance is necessary.
You will need to send me all relevant documents to this specific issue. That includes a screenshot of the docket from the beginning of the BKR proceeding. I will review them, order a new title search with copies of all relevant documents, and then set up a telephone conference with you. This is called the Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium). Generally speaking in roder for me to get brought up to speed you shoudl select the PREMIUM.
When we have the CONSULT we will decide on next steps. If it is the appeal I can draft all necessary documents but you should have local bankruptcy counsel advising you. This would be a limited retainer for which I would bill you $4500. That would cover all expenses and fees unless the judge orders me to appear. You must disclose where you are getting help.
If we go to a retainer, then I will send you a retainer agreement and upon execution, I will bill you through PayPal and upon receipt of payment I will commence work. The retainer fee can be s[rpead out over 60 days in three payments of $2500, $1,000 and $1,000.
Note that I am estimating fees not quoting them — and the fees paid to GTC Honors, Inc are in addition to the fees paid to local counsel.
PRACTICE NOTE: because of the statistics there is an inherent tactical advantage if you seek protection under chapters 13, 11, or 7. An erroneous ruling that is subject to interlocutory appeal has a far higher chance of success than anything you might find in the state court processes.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTMENET OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

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