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To Appeal or not to Appeal: That is the Question.

In this episode California Attorney Charles Marshall will discuss the pros and cons of filing an appeal.

Trial courts are not perfect institutions. They can and do make serious mistakes. And sometimes, trial courts are faced with unsettled areas of law, so that no matter what a judge decides, the losing side will have plausible grounds to appeal.

An appeal can be an opportunity to obtain justice when it was earlier denied. However, an appeal may not always make sense even if you believe that the trial court was in error. The first step in the appeals process is to decide what you hope to accomplish and whether the benefits justify possible drawbacks.

A successful appeal may not end your legal battle
Some successful appeals do provide the complete and final resolution of a dispute. However, this is by no means always true.

Many successful appeals result in the case being sent back for further proceedings in the trial court. This could result in a completely new trial. Although the Court of Appeal’s decision might result in that trial being conducted on ground rules more favorable than the first, there is no certainty that the bottom-line outcome will be any better. In fact, it could be even worse.

That said, a victory in the Court of Appeal could put you in a strong position to settle your case on favorable terms without having to go through a new trial. Often, the losing side in an appeal doesn’t have the stomach for a new trial and proves willing to compromise.

In fact, merely filing a notice of appeal can lead to a settlement that is better than the result obtained in the trial court. A significant number of civil cases settle during the course of an appeal — often, before the briefs are written. The other party may not want to go through the risk and expense of the appellate process and could be willing to give something up in order to achieve closure. If you hire an appellate specialist to handle an appeal, you send a strong signal that you are taking the process seriously — this increases the pressure on the other side.

The costs of continuing to litigate
Entering the appeals process means prolonging the emotional stress of litigation. The average civil appeal can last over a year. Federal appeals are especially slow — often taking about two years.

In addition, of course, there is the cost. Appeals can be one of the less expensive parts of the overall litigation process. Nonetheless, the appeal will add to your legal bills and, if the case then goes back to the trial court, the costs will increase further. This has to be weighed against what you stand to gain by appealing.

In addition, civil litigants will have to post a bond or other security if they want to stay the enforcement of many types of trial court judgment while an appeal is ongoing, including those involving money damages. And a defendant that loses an appeal will also have to pay interest on money that is at issue. The judicial interest rate is steep, 10 percent.

It may be beneficial to weigh the cost-benefit decision easier by having an attorney quote flat rates to handle appeals. While there is never any certainty about the outcome of an appeal, some certainty about the cost is helpful.

Evidence and appeals
Perhaps the most fundamental question to ask is how strong a chance you have of obtaining a reversal. As is shown elsewhere on this Web site, most appeals do not succeed.

One of the reasons is that the Court of Appeal does not reweigh the evidence heard by the trial court or — with very rare exceptions — consider new evidence. If the trial judge or jury believed evidence that “the light was red,” the Court of Appeal will not listen to an argument that “it was really green” — even if there was a lot more evidence pointing to that conclusion. Its job is solely to review whether the law was correctly applied to what the trier of fact in the trial court considered to be the facts and whether proper procedures were followed. An appeal is not a second trial.

That is not to say that an appeal does not provide any type of chance to challenge the evidence that was considered at trial. The Court of Appeal can decide whether certain evidence that was excluded should have been admitted, and whether evidence that was admitted should have been excluded.

In addition, the Court of Appeal can determine whether the evidence was sufficient to support a trial court outcome. But that can be a tall order on appeal — in general, an appeals court will uphold a decision based on facts if there is any evidence in the record that supports it.

The need to show “prejudice”
Even if you can point to legal error by the trial court, that does not of itself mean that you will succeed on appeal. The error must be “prejudicial.” The meaning of that term is itself a subject for argument, but one interpretation is that an error is prejudicial if there is a “real chance” that it made a difference to the outcome.

The need for prior objections
Another obstacle is that the Court of Appeal will not generally consider issues that were not initially raised in the trial court. If a trial lawyer did not object to a particular ruling or piece of evidence, for example, that issue most likely cannot be raised on appeal. It will generally have been waived. That said, an appellate lawyer may be able to introduce new arguments concerning an issue — although there can be gray areas between raising a “new issue” and merely improving upon the presentation of an issue already raised.

There are some ways around the waiver rule. For example, an often-overlooked exception is that a litigant may raise for the first time on appeal a pure question of law that that is presented by undisputed facts. In addition, litigants are not required to “preserve” an issue at trial if it would severely compromise their interests to do so — for example, a defendant at trial does not need to point out required evidence that the other side has omitted.

The risk of creating a bad precedent
Some litigants — particularly businesses — should consider whether or not they want to create a binding precedent in the disputed area of the law. Trial court decisions are not binding on other courts. Once a case goes to appeal, however, a legal precedent may be set that will be binding on trial courts faced with the same issue in the future. (Not all appeals do result in binding precedents — this depends on whether the Court of Appeal decides to “publish” its decision. A large majority are not “published.”)

In some situations, therefore, a party that loses at trial may be better off swallowing the result rather than risking an unsuccessful appeal that will have precedential effect. In other cases, however, a litigant may be eager to get the law settled once and for all.

The risk of cross-appeals
Keep in mind that if you appeal, the other side might “cross-appeal” — in other words, your opponent may try to reverse aspects of the trial court proceeding that were favorable to you. Therefore, even if you succeed in reversing one aspect of the trial court proceeding, the benefit could be offset by a less welcome reversal of another.

Conclusion
Winning on appeal is not easy. And a good appellate lawyer will always counsel a client about the pros and cons. But despite all the hurdles, many litigants do file appeals — and a significant number do go on to succeed. With civil appeals in the state courts, roughly one in five results in a complete reversal — and that doesn’t include appeals that result in some modification short of a reversal.

It is important that every potential litigant does consider the possible drawbacks of appealing. But if you have a good case, the battle can be well worth fighting — providing it is fought well.

For more information on California foreclosure litigation please contact:
Charles Marshall, Esq.
Law Office of Charles T. Marshall
415 Laurel St., #405
San Diego, CA 92101

Standing, Demanding & Remanding-Miami Foreclosure Attorneys Jacobs and Keeley

By William Hudson

2015. Lewis v USBank-Motion-for-Rehearing

Miami foreclosure defense attorney Bruce Jacobs accomplished what few attorneys have the commitment, perseverance and sheer guts to accomplish. However, he did so knowing he had a good criminal attorney in his corner- in case the court decided to sanction him, file a Florida Bar ethics complaint or possibly put him in jail. Jacobs is partners with former prosecutor and criminal defense attorney Court Keeley, so at least he would have someone to post bail.

First, Jacobs was able to successfully petition the Fourth District Court of Appeal to issue an opinion about a case it had already affirmed without providing an opinion, and then proceeded to persuade the court to reverse its ruling. If more attorneys would go to the mat for their clients like Jacobs and Keeley did- we might see more homeowners prevailing.

Bruce Jacobs, of Jacobs Keeley, reversed a per curiam affirmance (or PCA) and deserves a shout-out for his victory. Neil Garfield commented, “It is extremely unusual for an appellate court not only to write an opinion when they have made a decision not to write one, but then to recognize their error and reverse themselves is a rarity.”

The March 9 ruling by District Judges Robert Gross, Mark Klingensmith and Jonathan Gerber went unsigned but granted Jacobs’ motion for rehearing, withdrew the PCA and entered an opinion that reversed in favor of the homeowner against U.S. Bank. The court’s ruling was even more miraculous in light of the fact that the case had begun back in 2008 with Jacobs and Keeley refusing to compromise that U.S.Bank, acting as trustee for the registered holders of ABFC 2007-WMC 1 Trust, had no right to file a foreclosure action when no copy of the original note was attached to the bank’s complaint and questioned how the bank could reestablish a lost note. Broward Circuit Judge Jeffrey Streitfeld was not happy with the obstinate attorneys.

By the time the case went to trial in 2014, the bank had added indorsements to an allonge attached to the note, however, the bank’s witness could not explain when the indorsements had been added. It is not uncommon for “magical indorsements” and “phantom assignments” to mysteriously appear out of the ether when banks start practicing their voodoo “photoshop” dance that raises fake instruments from the dead.

The trial transcript demonstrates that Jacobs and Keeley dug their heels-in and reiterated that the lender could not sue the homeowner without evidence of standing- in which the bank lacked. Judge Jeffrey Streitfeld was more concerned about Jacobs and Keeley’s unprofessional behavior and the raising of an objection, than the bank’s failure to prove standing.

“Let me tell you something. We’re skating close to a real problem now, and that’s such a shame. I have to tell you something. I have lawyers in here that don’t sleep because of the weight of the cases that they handle, and they do not do what you’re doing,” Streitfeld said before taking a five-minute recess. “You better get your act together.”

Jacobs was admonished again when he had the audacity to interrupt bank attorney Heidi Weinzetl while she made remarks to the judge he found unsettling. Judge Streitfeld continued, “If you two do this one more minute, you’re going to spend the weekend in a very uncomfortable place.” He continued, “That’s just not what we do. We don’t do that, and you don’t do that. She was responding to my question.” It is no big mystery that the judge sided with the lender who had no more evidence of standing than if someone with a copy of the note and a fake indorsement walked into the courtroom and laid claim to the home. The Fourth District Court of Appeals would affirm but later reconsider after Jacobs filed a motion for rehearing and request for a written opinion. Jacobs and Keeley wouldn’t be golfing with Judge Streitfeld anytime soon.

Jacob would argue that Streitfeld incorrectly ruled in regards to U.S. Bank’s failure to attach a copy of the original note and prove it had the legal right to file for foreclosure in the first place. “This honorable court, the First DCA, the Second DCA and the Fifth DCA have all repeatedly held without exception that it is reversible error to grant a final judgment without proof of standing before filing the complaint,” Jacobs wrote in his appellate brief. The appeal court agreed basing their decision on the bank’s reliance on the pooling and servicing agreement to establish standing- and finding that proof to be insufficient.

Not only did Jacob and Keeley go where most attorneys fear to tread, the three District Judges Robert Gross, Mark Klingensmith and Jonathan Gerber decided to act with integrity, uphold their oath and honor the rule of law by ruling in favor of a homeowner. The appeal court did what many have failed to do- to stand up to banks that attempt to foreclose without proof that they have standing. As we have seen over and over again during the past nine years, presumptions are made in favor of the banks even when they clearly do not possess evidence of standing.

After writing this post, I came across ANOTHER excellent 4th DCA story that I feel should be included.

The days of banks running roughshod over Florida homeowners may be coming to an end, especially if the bank or home-owners association is brought to court in the Florida Fourth District Court of Appeal. Scribner Village Homeowners Association won a final judgment for foreclosure against homeowner Marie Alexandre for unpaid lien assessments. The property was then scheduled for sale. Meanwhile the homeowner filed for Chapter 11 bankruptcy protection and notified the state court that her home was protected by the bankruptcy automatic stay until the bankruptcy was settled. Despite the fact that an automatic stay acts as a temporary restraining order to protect the assets of the estate- the sale proceeded anyways, and the court clerk issued a certificate of sale to the Home Owner’s Association as high bidder.
Scribner Village Homeowners Association would literally steal a 5-bedroom home that was purchased ten years ago for almost half-a-million dollars for a measley $19,100. Scribner then filed a writ of possession, in which Alexandre asked the Palm Beach Circuit Court to deny the request and set aside the foreclosure judgment, sale and certificate of title. Disregarding state and federal law, the state court rejected her request and ruled in favor of the HOA. However, District Judge Dorian Damoorgian with Judges Melanie May and Jonathan Gerber disagreed with the lower court. “The sale should not have proceeded until the stay was lifted,” Damoorgian wrote in his opinion. “The trial court erred in denying appellant’s motion to set aside the sale and everything that flowed from it.”

 
Scribner Village appeared to have dropped out of the litigation, making no appearance on appeal. The question becomes, why are state circuit court’s so unwilling to comply with the state law? Alexandre was represented by attorney James Jean-Francois out of Hollywood (Florida) who did an excellent job of defending’s his client’s rights. Home Owners Associations have gotten away with stealing homes for pennies on the dollar for years. It is unfortunate that a homeowner must go all the way to an Appeals Court to obtain justice.

 

Jacobs-Keeley Trial Lawyers:

http://www.jakelegal.com/

No compensation was provided by this law-firm in exchange for this article.
This is not an endorsement of  Jacobs-Keeley although we were impressed.

 

Foreclosure Strategists: Phx. Meet tonight: Make the record in your case

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Editor’s Comment:

Contact: Darrell Blomberg  Darrell@ForeclosureStrategists.com  602-686-7355

Meeting: Tuesday, May 15th, 2012, 7pm to 9pm

Make the Record

It appears the most rulings against homeowners are predicated on some arcane and minute failure of the homeowner to make the record.  We’ll be discussing how to make sure you cover all of those points by Making the Record as your case moves along.  We’ll also look at how the process of Making the Record starts long before you even think of going to court

We meet every week!

Every Tuesday: 7:00pm to 9:00pm. Come early for dinner and socialization. (Food service is also available during meeting.)
Macayo’s Restaurant, 602-264-6141, 4001 N Central Ave, Phoenix, AZ 85012. (east side of Central Ave just south of Indian School Rd.)
COST: $10… and whatever you want to spend on yourself for dinner, helpings are generous so bring an appetite.
Please Bring a Guest!
(NOTE: There is a $2.49 charge for the Happy Hour Buffet unless you at least order a soft drink.)

FACEBOOK PAGE FOR “FORECLOSURE STRATEGIST”

I have set up a Facebook page. (I can’t believe it but it is necessary.) The page can be viewed at www.Facebook.com, look for and “friend” “Foreclosure Strategist.”

I’ll do my best to keep it updated with all of our events.

Please get the word out and send your friends and other homeowners the link.

MEETUP PAGE FOR FORECLOSURE STRATEGISTS:

I have set up a MeetUp page. The page can be viewed at www.MeetUp.com/ForeclosureStrategists. Please get the word out and send your friends and other homeowners the link.

May your opportunities be bountiful and your possibilities unlimited.

“Emissary of Observation”

Darrell Blomberg

602-686-7355

Darrell@ForeclosureStrategists.com

Writ of Mandamus: The Right Procedure

submitted by Frank D’Anna

Writ of Mandate 2 Frank D’Anna

COMMENT: I don’t know if Frank got help, but however he did it, this is a fine piece of work. He obviously understands that if you want to take an appeal, you must state a reason that the trial court erred. If you want to win it, you better come up with a procedural issue that is compelling. Most appeals fail. The reason is that the Appellant wants the appellate court to say the Judge was wrong on the facts. They don’t do that except in the rarest of cases, so don’t bother.

The best appeal is to be able to say and show IN THE COURT RECORD that you didn’t get your day in court, which is to say that the trial judge refused to hear your case on the merits. Any other appeal will get “Per Curium, Affirmed” without comment.

The second best appeal is to imply that the trial judge was tone deaf and ruled based upon presumptions he wasn’t allowed to make. D’Anna’s appeal is a combination of the the two approaches. They both amount to the same thing: you were not heard on the merits and the trial judge prejudged the case based upon incorrect presumptions.

Speaking in legalese this means that the trial judge presumed that YOU had the burden of proof and allowed your opposition, over your objection, to introduce information that was not authenticated, verified or given proper foundation to be taken into evidence. In many cases there is no evidentiary hearing. Your case is a denial of the allegations of the oppositions whether they have filed (judicial states) or they haven’t filed them (Non-judicial states).

The mistake repeatedly made in the trial court is acceptance by the borrower that the borrower has some burden of proof regarding the standing of the opposing party, whether the opposing party is a real party in interest, and whether the note was properly assigned or ever made it into the “Trust.”

This is just plain wrong: There is only party actually seeking affirmative relief — the one who wants to enforce the note and foreclose on the property. The party seeking affirmative relief is the ALWAYS charged with pleading a case upon which relief could be granted and ALWAYS required to prove each and every allegation. The allegations and the proof must line up with the elements of their cause of action as stated by statute, the rules of civil procedure and previous common law decisions.

In non-judicial states these errors are magnified. Because the law is universally misapplied, a party can foreclose through power of sale even if they would have no right to foreclose judicially. That is not the law and if it was the law it would be unconstitutional.

  • The fact that the forecloser ignores the basic elements of law does not shift the burden of pleading or the burden of proof onto the borrower.
  • The fact that the borrower/debtor must bring an action seeking injunction or restraining order to stop the non-judicial sale does not change the burden of pleading or the burden of proof.
  • Once the denial or objection is registered in any fashion, the Trustee in a non-judicial state and the mortgagee in a judicial state MUST, under all conditions, plead and prove their case in a court of law.
  • Non-judicial election is simply not available.

BUT HERE’S THE RUB: IF YOU DON’T OBJECT TO WHAT THE COURT IS DOING, YOUR OPPOSITION IS GOING TO ARGUE, MANY TIMES SUCCESSFULLY THAT YOU WAIVED THAT ARGUMENT. BUT JURISDICTIONAL ISSUES CAN BE HEARD AT ANY TIME EVEN IF THEY ARE FIRST BROUGHT UP ON APPEAL.

Foreclosure Defense and Offense: Cram Down Plan on Appeal in Chapter 13

it is a lesson again to practitioners like myself who were convinced there was no answer to the “final order” conundrum: No matter how crazy the tactic might sound, you’re only wrong if you lose.

Appeal Your Own Victory? Yes, Indeed!

Taking an appeal in a Chapter 13 bankruptcy case just took an interesting turn for debtors in the Midwest. In May, the Eighth Circuit Court of Appeals allowed a debtor’s objection to her own Chapter 13 plan to be heard on appeal. Sometimes judicial enlightenment comes in surprising and unusual developments.

Traditionally, courts of appeal hold that you cannot appeal a decision until it is final. But what is final in a Chapter 13? In the Eighth Circuit, for example, we have known for sometime that a court’s refusal to confirm a proposed plan is not a ‘final’ order for appeal. The debtor had to accept the dismissal of the case in order to take an appeal to a higher court. That could mean the loss of court protection for property and income while the appeal proceeded for months or years — a self-defeating choice for most consumers.

A debtor from Kansas City did not like this approach. So she tried something crazy. When the bankruptcy court refused to approve her first Chapter 13 plan, she proposed one the court would approve. And then she filed an objection to it. The bankruptcy judge rejected the objection and approved the plan. The debtor then appealed the denial of her objection — to her own plan. The Bankruptcy Appellate Panel turned down this appeal, reasoning that the debtor was not a “person aggrieved” by the lower court’s final order denying the objection. On the other hand, two BAP members also suggested the circuit court should re-examine its “final order” standard in order to allow consumers a more meaningful opportunity for appellate review in Chapter 13 scenarios.

The circuit court refused to modify its standards regarding the appealability of final orders. But in an astonishing twist, the court reversed the BAP and found that the debtor was “aggrieved” by the denial of her objection to her own plan. As she was now bound to perform the plan, she was injured. As the panel concluded:

Not to allow a debtor to appeal confirmation of her own plan would require a debtor to comply with a plan that contains provisions the debtor does not believe are required by the Bankruptcy Code, while losing her right to appeal those provisions.

For many consumer advocates who despaired that it was virtually impossible to take an effective Chapter 13 appeal, this is a surprising and delightful sign.

And it is a lesson again to practitioners like myself who were convinced there was no answer to the “final order” conundrum: No matter how crazy the tactic might sound, you’re only wrong if you lose.

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