Category Archives: Trial Strategies

What Homeowners With Business Should know About Federal Judgments and Chapter 11 Plans

16 Tuesday Jul 2019

Posted by in Affirmative Defenses, Bankruptcy, Borrower, Case Laws, Credit, Federal Court, Judgment, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, Trial Strategies, Your Legal Rights

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What greeting card do you expect from the judgments warehoused in your file cabinets? Yes, those judgments can mail you a greeting card. Your first choice is the birthday card: “Happy 10th Year Anniversary. What a ride. Thanks for the renewal. See you in ten years.” Your other choice is the condolence card: “10 years? You waited too long. My dearest sympathy.”

Victory lasts forever, but not a federal judgment. “There is ‘no specific federal statute of limitations on how long [a federal] judgment is effective. (citation omitted) When no federal statute applied, state practices and procedures are utilized.”1 State law provides a judgment creditor with the rights and remedies to enforce a federal money judgment under F.R.C.P. 69(a)(1), including the renewal of a money judgment.2 The law of the state measures the life of a federal judgment. A pending appeal does not toll the enforceability period under C.C.P. § 683.020.3

The Law of the Domicile Measures the Life of a Federal Judgment

In In Re Levander,4 the Ninth Circuit held that the federal courts apply the law of the domicile in the enforcement of a judgment.5 Similarly, in McCarthy v. Johnson,6 the court held that Utah state law provided the mechanism for the renewal of a federal judgment. In Fidelity Nat. Fin. Inc. v. Friedman, the Ninth Circuit held that state law applies when measuring the life of judgments. Federal and bankruptcy courts apply state law when renewing a judgment because federal judgments lack a federal expiration date.7 While Fidelity dealt with a registered judgment, the principle that a registered judgment is deemed a judgment for all purposes under 28 U.S.C. § 1963 is nevertheless applicable.

The Ninth Circuit held that the federal courts are to apply state law in determining the statute of limitations.8 Likewise, the Fifth Circuit applied Texas state law in Andrews v. Roadway Express, Inc. (5th Cir. 2006) 473 F.3d 565, holding that a consent decree, arising from a class action suit, was time barred as a result of the plaintiffs’ failure to timely renew the judgment and raising the issue whether other judgment providing for payment to class bear a fixed life.9 Unless a federal statute provides otherwise, the practice relative to the revival of dormant judgment is governed by state law.10

Deader Than a Doornail: the Statue of Repose

Some states have held that a time-barred judgment is extinguished and ceases to exist (“statute of repose”), as opposed to having a procedural rule that bars recovery in the enforcement of judgments.11 In United States v. Tacoma Gravel & Supply Inc.,12 the Ninth Circuit, construing Washington state law, held that Washington state’s limit on the enforceability of judgments is a statute of extinguishment (i.e., a statute of repose),13 not a statute of limitations. Moreover, the Ninth Circuit unequivocally held that “this is not a statute of limitations but of extinguishment; after six years, a Washington judgment has no force or effect—it ceases to exist. [Collection of Washington state cases]”14 The Tacoma court applied Washington state law to bar enforcement brought by the United States, stating that the “Appellant had no judgment left to renew,” a conclusion predicated in part on the government’s filing in state court.15 The court did not leave the government empty-handed. It left open the prospect that the underlying claim was still viable under United States v. Summerlin.16 Tacoma is important because it demonstrates that a renewal statute is also a statute of repose that may extinguish the judgment completely.

Read the Manual

California Code of Civil Procedure §§ 683.110 through 683.220 provide for the renewal of a judgment consisting generally of the filing and service of an application for renewal [Sections 683.140 to 683.150]. Upon filing the application, the clerk shall enter the renewal in the court records.17 Section 683.150(a) authorizes renewal without the necessity of service of process of the renewal “package.” (Judicial Council Form Nos. EJ-190, EJ-195, and MC-012, and include a detailed declaration of interest).

To initiate enforcement, the judgment creditor must serve the renewal by mail. See C.C.P § 683.160(b). To maintain the judgment lien on the real property, the judgment creditor must record a certified copy of the application for renewal. SeeC.C.P § 683.180.18 Ten years is a long time and expect that the debtor might have conveyed the property, fraudulently or otherwise. The judgment creditor must personally serve the transferee and file proof of service within 90 days of the renewal filing. See §§ 683.180(b)(1) & (2) in prosecuting the renewal. This is a common error and title reports (modern parlance and much cheaper: litigation guaranty) are de riguer in identifying the transferee. In the online world, nearly every county recorder (except Los Angeles) will identify the grantee of the debtor under the “granter/grantee” index. Use Judicial Council Form EJ-190 for the Northern District of California, not the Central District, which requires a traditional filing.19

Chapter 11 Plans Are Money Judgments and Expire Like Any Other Federal Judgment

The fact that a class action [“Andrews”] judgment expired suggests that a confirmed Chapter 11 plan, providing for payment to the creditors, would likewise expire unless renewed pursuant to the domicile law. Chapter 11 plans are a blend of contract, judgment, and consent decree, offering payment to a group of creditors.20 Chapter 11 plans assure payment equivalent to their recovery in a Chapter 7 liquidation21 and are subject to enforcement if breached.22 If a consent decree arising from a class action expires like any other federal judgment, the confirmed Chapter 11 plan, bearing the near-identical attributes (judgment, class of claimants, continuing supervision, claim filings procedures, and pro rata payment based on the consent decree), would likewise expire absent a renewal under state law.23 The statute of repose would extinguish the plan obligations and reinvigorate a mediocre balance sheet. The plan discharge would recapitalize the debtor. Who would be beneficiary of the plan “kicking the bucket?” Answer: the shareholders who are the [pre-petition] creditors.

Is dumping the Chapter 11 plan a good deal and for whom? Answer: Yes, if stock of the debtor, freed of the plan and publicly traded, offers greater value to the creditors than payments under the plan. Expiring Chapter 11 plans recast the asbestos mega-cases24 whose plans bear a lifespan of 10 years plus and compensate claimants with debtor’s stock [through a claimant’s trust]. The statute of repose frees the debtor of plan obligations [billions], jumpstarts the stock, and puts real money in the hands of the claimants.

Federal Courts Are Eternal But Federal Judgments Are Not

The life of a federal judgment could easily exceed 10 years, given various appeals up to the Supreme Court. Consent decrees offering payment over time to claimants can run 10 years or more. Asbestos Chapter 11 plans readily exceed ten years and the Johns Manville plan is now in excess of 20 years. These plans [judgments or decrees] bear the risk of extinguishment if not renewed and, if expired, would upset settled social and political expectations.

Is a plan implosion a disaster? In a Chapter 11, the beneficiaries are the creditors as shareholders, anticipating an upswing in the stock value, would move to extinguish the plan and inherit a revived company. This result suggests that the plan extinguishment more efficiently compensates victims of the mass tort than the plan payments because the invisible hand of the marketplace reveals this outcome. The plan extinguishment will wipe out the plan and the market will rush to the stock.

1. In re Fifarek (Stark v. Fifarek), 370 B.R. 754, 758 (Bankr. Court, W.D. Mich. 2007); In re Hunt (Lillie v. Hunt), 323 B.R. 665, 666 (Bankr. W.D. Tenn. 2005) (“Since there is no specific statute of federal statute of limitations on how long this judgment is effective, the parties agree that we must look to Tennessee law [citation omitted])”.

2. Fed R. Civ Pr. 69(a)(1)&(2)

3. Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 201 [106 Cal.Rptr.2d 854]: The period prescribed in Section 683.020 commences on the date of entry and is not tolled for any reason

4 In re Levander, 180 F.3d 1114 (9th Cir. 1999)

5. Id. at 1121-1122, “We have held that Federal Rule of Civil Procedure 69(a) empowers federal courts to rely on state law to add judgment-debtors under Rule 69(a), which permits judgment creditors to use any execution method consistent with the practice and procedure of the state in which the district court sits.” citing to Cigna Property & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 421 (9th Cir.1998) (quoting Peacock v. Thomas, 516 U.S. 349, 359 n. 7, 116 S.Ct. 862 [1996])(internal quotation marks omitted); see also, Andrews at 568; Crump v. Bank of America, 235 F.R.D. 113, 115 (D.D.C. 2006); RMA Ventures v. Sun Am. Life Ins. Co., 576 F.3d 1070, 1074 (10th Cir. 2009) (“Once a federal district court issues a write of execution, a judgment creditor must follow the procedure on execution established by the laws of the state in which the district court sits. [Citations omitted] ***). Thus, as required by FRCP 69(a)(10), Defendants have turned here to the method of execution prescribed under Utah law.”

6. McCarthy v. Johnson, 172 F.3d 63 (10th Cir. 1999). Unpublished Opinion

7. Fed.R.Civ.Pro 69(a) et seq. incorporates the law of the state in enforcing money judgments, including the requirement of a renewal. McDaniel v. Signal Capital Corp., 198 B.R. 483, 486-487 (Bankr. S.D. Texas 1996); see also, In re Brink, 227 B.R. 94, 95-96 (Bankr. N.D. Texas, 1998); In re Davis, 323 B.R. 745, 748-749 (Bankr. D. Ariz, 2005); In re Hunt; (Lillie v. Hunt), 323 B.R. 665, 666-667 (Bankr. W.D. Texas 2005); In re Fifarek (Stark v. Fifark), 370 B.R. 754, 758 (Bankr. W. D. Mich. 2007). Also In re Romano (Romano v. LaVecchia), Westlaw cite unavailable [WESTLAW?] (9th Circuit BAP, 2009) (“Thus, state law governs the procedure for execution on a judgment in the absence of an applicable federal statute. There is no relevant federal statute we have been able to locate with regard to the renewal of judgment. The parties agree that Nevada law governs the enforcement of the judgment.” [6 years], aff’d 2010 Ap. Lex 5444 (9th Circuit, 2010).

8. See Marx v. Go Publ. Co., Inc., 721 F.2d 1272, 1273 (1983); see also; Duchek v. Jacobi, 646 F.2d 415, 417 (1981).

9. Andrews at 567-568 (collection of cases). Note the discussion whether the issue is the time limits for the issuance of a writ of execution is subject to state law and whether the judgment is extinguished.

10. See Donellan Jerome Inc. v. Trylon Metals Inc., 996 F. Supp. 996 (USDC, N.D.Ohio 1967 (Collection of cases).

11. Mississippi provides for statute of repose, not statute of limitations for judgment renewals. [Mississippi Code § Ann 15-1-43].

12. United States v. Tacoma Gravel & Supply Co., 376 F.2d 343, 344-345 (9th Cir. 1967) (“Consequently, the judgment becomes inoperative for any purpose after expiration of six years.) Please note that, while Washington has extended the life of a judgment to ten years, the holding in Tacoma that the Washington statute is one of repose, extinguishing the judgment, still applies. Cf. RCW 4.16.020 and 4.56.210

13. A statute of repose cuts off a right of action after a specified period time, irrespective of accrual or even notice that a legal right has been invaded. Giest v. Sequoia Ventures, 83 Cal.App.4th 300, 305 (Cal.App.1 Dist., 2000).

14. Tacoma at 344.

15. Id. at p. 345.

16. In re Penberthy, 211 B.R. 391, 395 (Bankr.W.D. Wash. 1997).

17. Goldman v. Simpson, 160 Cal.App.4th 255, 262: “The statutory renewal of judgment is an automatic, ministerial act accomplished by the clerk of the court; entry of the renewal of judgment does not constitute a new or separate judgment. ‘Filing the renewal application (and paying the appropriate filing fee, Gov.C. § 70626(b)) results in automatic renewal of the judgment. No court order or new judgment is required. The court clerk simply enters the renewal of judgment in the court records.’”

18. Songer v. Cooney (Cal. App. 2 Dist. 1989) 214 Cal.App.3d 387, 393, 264 Cal.Rptr. 1 [abstract of judgment ensures enforceability of judgment lien even though the debtor is bankrupt].

19. If in state court, the alternative method (if timely) is to file a suit to renew the judgment. See Pratali vs. Gates (1992) 4 Cal App. 4th 632, 637-638 and Green vs. Zissis (1992) 5 Cal. App. 4th 1219, 1222; for more a detailed discussion, see Fredric Goldman vs. Orenthal James Simpson (O.J. Simpson) (2008) 160 Cal.App.4th 255 [continuing jurisdiction over judgment debtor who absconds from California]. If the defendant departed the state, C.C.P. § 351 tolls the statute of limitations. Green vs. Zissis, supra., at 1222-1123. See also Kertesz vs. Ostrosky (2004) 115 Cal. App. 4th 369, 373. A California state court judgment becomes final upon expiration of the appeal time, or issuance of the remittitur. Green vs. Zissis, supra. p. 1223. If notice of judgment is service, the judgment becomes final in 60 days, and absent notice, 180 days. The notice of entry of judgment kicks off the 60-day clock under C.R.C. 8.104(a)(1) & (2) [60 days after notice from clerk or party], but under C.R.C. 8.104(a)(3), the judgment does not become final until 180 days after entry of judgment. A federal judgment, on the other hand, differs from state law, and is final upon entry. Eichman v Fotomat Corp. (9th Cir 1985) 759 F.2d 1434, 1439.

20. In re Bruce Bartleson, 253 B.R. 75 (9th Cir. BAP 2000) at 78-79

21. 11 U.S.C. § 1129(a)(7)(A)(ii) [Unsecured creditors should emerge from the Chapter 11 with equal or better than what would a Chapter 7 would pay]

22. See In re OORC Leasing, LLC (Bankr. N.D. Ind. 2007) 359 B.R. 227 at 233.

23. A statute of repose extinguishes the judgment. A statute of limitations on a judgment renders the judgment unenforceable. Consent decrees, Chapter 11 plans, and installment judgments provide for periodic payments, sometimes spanning more than ten years. Chapter 11 asbestos plans span decades. This article suggests that a statute of repose would extinguish the decree, plan, or judgment. The statute of limitations might render the decree, plan, or judgment unenforceable but the obligation might remain viable as a contract and enforceable by way of independent suit. Installment judgments have a separate clock under C.C.P. § 683.130(b)(1) based upon the accrual of the past-due payments. The math is left to another article.

24. Nearly all publicly traded.

[The views expressed in this document are solely the views of the Author. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance]

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

If you have received a Notice of Default “NOD”, take a deep breath, as this the time to start the FIGHT! and Protect your EQUITY!

If you do Nothing, you will see the WRONG parties WITHOUT standing STEAL your home right under your nose, and by the time you realize it, it might be too late! If your property has been foreclosed, use the available options on our package to reverse already foreclosed home and reclaim your most prized possession! You can do it by yourself! START Today — STOP Foreclosure Tomorrow!

If you are a homeowner already in Chapter 13 Bankruptcy and needs to proceed with Adversary Proceeding to challenge the validity of Security Interest or Lien on your home, Our Adversary Proceeding package may be just what you need.

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What Homeowners Must Know After they Have Been Sued in a Bankruptcy Adversary Proceeding

18 Monday Jun 2018

Posted by in Bankruptcy, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, Trial Strategies, Your Legal Rights

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This post will be helpful to the Debtor when defending against a creditor’s/trustee’s objection to your discharge or the filing of a Complaint for Nondischargeability based upon fraud/conversion; however, this post may also assist the Debtor in bringing an adversary proceeding should one be necessary.

Introduction

An adversary proceeding is a lawsuit brought within your bankruptcy. This lawsuit normally centers around whether a particular debt or all of your debts are dischargeable (or forgiven) through the act of your filing bankruptcy. These lawsuits usually focus around some alleged improper act on your part, including fraud, misrepresentation, or your failure to abide by the Bankruptcy Code and accompanying Rules.

You are now at the point of the adversary process where you have received, by mail or by personal service, the complaint filed by your creditor which asks the Court to decide whether or not that particular obligation should be part of your bankruptcy discharge or an objection to your overall discharge should be granted.

This section of the adversary proceeding packet is to inform you of what your obligations are in order to prepare for a trial. Note that there are references to the bankruptcy rules: Local Rules of Bankruptcy Practice = LR; Federal Rules of Bankruptcy Procedure = Fed.R.Bankr.P. You may also find both types of Rules at the county law library or you may access the Local Rules at the court’s website http://www.uscourts.gov. You should take a look at these rules if you have any questions about the information given in this section.

Step 1: Answer

After you receive a complaint, you must file an answer with the clerk of the Bankruptcy Court within 30 days after issuance of the summons. (Fed.R.Bankr.P. 7012) You must provide a copy of that answer to the creditor’s attorney.

Step 2: Pre-Trial Conference

Note that the cover sheet you receive from the Court will set forth a pre-trial conference date in the lower right-hand corner of the Summons. You must attend that hearing. At that time, the Court will set parameters for trial. The Court may also discuss with the parties whether or not any settlement is possible. Prior to this pre-trial conference with the Court, and within thirty (30) days after you have answered the complaint, you are required to meet with the attorney for the creditor to discuss how discovery will be conducted in the case. After you have had this discussion and no later than fourteen (14) days after the meeting with the attorney, the parties are required to submit a discovery plan. (Fed.R.Bankr.P. 7016 and LR 7016) This plan is a form which the creditor’s counsel will have and will be filled out by both parties. The form will then be submitted to the Court and the Court will then approve, disapprove or modify the discovery plan and enter any other orders that may be appropriate.

Step 3: Discovery

After you have gone through the preparation of the discovery plan and have had it approved by the Court, you will then conduct your discovery. Local Rule 7026 will provide you with information as to what the parties may or may not do during the discovery process. You may also want to look at Local Rules 7026 through and including 7036 and Fed.R.Bankr.P. 7026 through and including 7036 which gives further information regarding some of the discovery tools or requirements.

Step 4: Motions

You may find that throughout the time frame prior to trial that motions are being filed. Motions may be filed by either party. If you are served with a motion in your adversary proceeding, please be advised that you are required to file your opposition or response with the Court and serve your response to the creditor’s attorney not more than fifteen (15) days after you have received the motion and, in no event, not later than five (5) business days prior to the date set for the hearing on the motion. (Fed.R.Bankr.P. 9013 and Local Rule 9014) Make sure that you provide counsel with a copy of your response.

When you get to Court, you are basically going to supplement what is in your opposition or your motion so the Court can make a well-informed analysis of the situation and then deliver an appropriate decision. Please note that when you are in front of the Court, your time is limited. Generally, a motion is limited to approximately five minutes for both sides. It is the feeling of all judges in our district that if all motions and oppositions are well-drafted and timely filed, there is no reason to spend lengthy periods with oral argument. Therefore, you will be expected to come in to court, make a brief presentation and then sit down.

Step 5: Trial

After you have completed all discovery and all motions, you will then be at the point where the parties are ready to proceed with trial. Your trial date will be assigned to you at the pre-trial conference and the Court will generally schedule the trial within 60 and 120 days depending upon the nature of the matter being tried.

Approximately two weeks prior to the trial, you are required to file with the Court a trial statement, a list of witnesses, and a list of exhibits. You must also exchange these documents with the attorney for the creditor. If you and the attorney for the creditor can agree on what the basic issues in trial are going to be, the trial statement may be filed jointly. In other words, one statement will represent the facts and information for both sides to the Court.

The day before the trial, the parties will mark all the exhibits and any supplemental information that needs to be added to the trial statements. Although you are not required to agree with the attorney for the creditor as to what exhibits may be introduced into evidence, it is strongly encouraged that the parties try to agree to all exhibits to be placed before the Court in an effort to have an economical and efficient adjudication of the case.

Certain documents have been included in this packet so that you will have the ability to understand what needs to be filed with the Court prior to trial. However, it is strongly recommended that you access the court’s website at http://www.uscourts.gov and download a copy of the Local Rules. These will prove very useful to you through the course of the adversary proceeding. You may also wish to check with the county law library for a copy of the Local Rules.

All bankruptcy judges are willing to set up a time to discuss whether or not the case may be settled. Many times, having an impartial third party listening to the problems will allow negotiations to flow freely and hopefully obviate the need for the trial. If a settlement conference is set up, it will not be the judge in front of whom this matter will be heard, so you need not fear that you will be prejudiced in any way if this matter is not settled.

COURTROOM ETIQUETTE BETWEEN THE COURT AND THE PARTIES

1.  Don’t take the argument personally (no personal slurs against the other party.)

2. Advocacy does not mean we cannot be civil and communicate with the other side.

3. Adversary proceedings are intended to be negotiated if possible.

4. If you cannot resolve the matter and proceed to trial, remember the following:

a. Dress Appropriately- Nice attire such as a suit or slacks is acceptable. Please no hats, shorts, thongs, tank tops, etc.

b. Your statements should be addressed to the court and not to the other side- The only time you should speak to opposing counsel is during breaks or with the Court’s permission after requesting a break.

a. Do not interrupt the other side or the judge when they are speaking.

b. Remember to follow the rules as explained in the attached documents regarding the filing of your trial statement, list of exhibits, witnesses, etc.

DEALING WITH THE LAW

1. Understand your responsibilities and respond accordingly. You are held to the same standard as an attorney when presenting your case and arguing the legal issues. You may need to educate yourself on the law at issue by visiting the law library and reading the Bankruptcy Code and cases dealing with those sections of the code involving your case.

2. Sanctions – Remember that if you act disrespectful to the Court or opposing attorney, or if you lie in your court pleadings or under oath at trial, the Court has the power to sanction you by either assessing a fee or ruling for the opposing party.

3. If you have any questions regarding your responsibilities, call the other side’s attorney they will answer procedural questions, but cannot assist you with your legal argument.

4. Know the Local Rules – you can obtain a copy by accessing the court’s website at http://www.uscourts.gov You may also be able to obtain the rules from the county law library or from opposing counsel.

 When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

What Pro Se Homeowners Must Know About Appellate Issues and Record on Appeal

28 Saturday Apr 2018

Posted by in Appeal, Case Laws, Case Study, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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Trying cases is one of the most exciting things a litigator does during his or her career but it is also certainly one of the most stressful.

While over 90% of the cases never make it to trial before settlement, if your case is one of the 10% or less that made it to trial, as a Pro Se litigator, there are few things to bear in mind.

A study conducted few years back shows that About 97 percent of civil cases are settled or dismissed without a trial. The number tried in court fell from 22,451 in 1992 to 11,908 in 2001, according to the study. Plaintiffs won 55 percent of the cases and received $4.4 billion in damages.

Homeowners litigating their wrongful foreclosure cases Pro Se are not Attorneys by profession, however, this post is designed to help Homeowners perfect and win their wrongful foreclosure Appeals.

Your case on appeal can be greatly improved by focusing on potential appellate issues and the record on appeal from the start of a case until the finish.

While in the trenches during trial, many litigators understandably focus all of their energies on winning the case at hand. But a good litigator knows that trial is often not the last say in the outcome of a case. The final outcome often rests at the appellate level, where a successful trial outcome can be affirmed, reversed, or something in between. The likelihood of success many times hinges on the substance of the record on appeal. The below discusses a variety of issues that Pro Se trial litigators should keep in mind as they prepare and present their case so they position themselves in the best possible way for any appeals that follow.

Prepare Your Appellate Record From The Moment Your Case Begins

Perhaps one of the biggest misconceptions regarding preserving an adequate record on appeal is when a Pro Se litigant should start considering what should be in the record. In short, the answer is from the moment the complaint is filed. At that time, Pro Se Litigants should begin to think carefully about the elements of each asserted cause of action, potential defenses and their required elements, and the burden of proof for each. Every pleading should be drafted carefully to ensure that no arguments are waived in the event they are needed for an appeal. For instance, a complaint should allege with specificity all the factual and legal elements necessary to sustain a claim, while an answer should include any and all applicable affirmative defenses to avoid waiver. See, e.g., Travellers Int’l, A.G. v. Trans World Airlines, 41 F.3d 1570, 1580 (2d Cir. 1994) (“The general rule in federal courts is that a failure to plead an affirmative defense results in a waiver.”).

Likewise, if you file a motion to dismiss, ensure that the motion contains all the
necessary evidence that both a trial court and appellate court would need to find in your favor.

Of particular importance in federal court practice is the pre-trial order. Under Federal
Rule of Civil Procedure 16, the pre-trial order establishes the boundaries of trial. See Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998) (“It is a well-settled rule that a joint pre-trial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial.”). If the pre-trial order does not contain the pertinent claims, defenses or arguments that you wish to present at trial, you are likely also going to be out of luck on appeal.

Later on in the case, as the factual record becomes more fully developed, consider
whether amending or supplementing the pleadings or other court submissions are necessary to make the record as accurate as possible. Most states follow the federal practice of allowing liberal amendments. However, these can be contested, particularly late in the process, closer to trial. While appellate review is often for abuse of discretion, formulating a strong motion in favor of or in opposition to an amendment can preserve the issue.

What to Keep in Mind as Your Case Proceeds

As the case develops, consider whether the elements you need to prove your case are
sufficiently reflected in the information you obtain during discovery. If not, determine whether there are ways to obtain the information you need well before trial starts. By the time trial arrives, it may be too late to supplement the record to get before the trial judge and the appellate court what you need to win your case. In that regard, anything you have in writing that gets submitted to the court may very well end up being part of the record on review, so make sure it is accurate and understandable. Incomprehensible or incomplete submissions can muddy your appellate record and damage a successful appellate proceeding. In the same vein, make sure
anything presented to the court prior to trial that you want to be part of the record is transcribed.

Otherwise, there will be an insufficient record on appeal. This is particularly so when it comes to discovery disputes. Although they are common in present day litigation, judges hate discovery disputes. To preserve discovery issues for appeal, be sure to get a ruling, and make sure it is reflected in writing. Moreover, carefully review every pre-trial court order or other judicial communication, including court minutes, to ensure accuracy. Attempting to make corrections during the appellate process may not be possible.

Another significant area for appellate issues is the failure to timely identify experts. This is subject to an abuse of discretion standard of review, so it is important that one builds a record on the issue, particularly regarding any prejudice suffered by the untimely disclosure.

After Discovery Closes – The Motion in Limine

Once discovery has closed, consider carefully any motions in limine you may want to
make. Although motions in limine are not strictly necessary, they are helpful in identifying evidentiary issues for the judge and litigant and increase the chances of a substantive objection, sidebar, and ruling when the issue arises at trial. One potential pitfall – some jurisdictions require a party to renew an objection at trial after a motion in limine has been denied, so make sure to do so if necessary. See, e.g., State ex. Rel Missouri Highway and Transp. Com’n v. Vitt, 785 S.W.2d 708, 711 (Mo. Ct. App. E.D. 1990) (“A motion in limine preserves nothing for review. Following denial of a motion in limine, a party must object at trial to preserve for appellate review the point at issue.”) (internal citation omitted). Also, if the Court delivers its ruling on a motion in limine orally, make sure it is transcribed properly by the court reporter.
Leave no doubt that you have raised (and obtained a ruling on) an issue.

Now the Trial – What to Keep in Mind

Above all else, when in doubt, object. Objections should be immediate and specifically describe the basis for the objection so the record is clear. Make the argument to win –
every objection should be more than just reciting labels, and should provide sufficient information for the trial judge to decide the issue. The goal is not to be coy with the trial judge and hope for a lucky break, but to be prepared to make an argument to win the issue at trial or, alternatively, on appeal. In addition, if you are the party proffering the evidence, make sure the proffer is on the record and that you expressly state why the evidence is being offered. This may require pressing on the judge to get the full objection on the record. If you fail to do so, you risk the appellate court not reviewing the claim on appeal. See, e.g., National Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 274-75 (2010) (observing “purpose of a proffer is to make an adequate record of the evidence to be introduced … [and] preserves the issue for appeal and provides the appellate court an adequate record to review when determining whether the trial court erred in excluding the evidence.”). Also, always be careful of waiving any issues for appeal by agreeing to a judge’s proposed compromise on evidentiary issues.

An important but often overlooked consideration is the courtroom layout and dynamics. Well-thought and timely objections will be for naught if they are not transcribed. Sometimes the courtroom layout can make record preservation difficult. For example, if objections are made at sidebar conferences where the court reporter is not present, those objections may not make their way into the appellate record or be dependent on the after the fact recollections of others. See, e.g., Ohio App. R. 9(c) (describing procedures for preparing statement of evidence where transcript of proceedings is unavailable and providing trial court with final authority for settlement and approval). This should be avoided whenever possible.

Beyond objections, make sure all the evidence you need for your appeal is properly admitted by the trial court before the close of your case. All exhibits that were used at trial should be formally moved into evidence if there is any doubt as to whether they will be needed on appeal. If you had previously moved for summary judgment and lost, make sure you take the necessary steps at trial to preserve those summary judgment issues, especially in jurisdictions that do not allow interlocutory appeals.

Another important aspect of the trial is the jury instructions. Jury instructions should always be complete. Remember that the instructions you propose can be denied without error if any aspect of them is not accurate, so break them into small bites so that the judge can at least accept some parts. Specifically object to any jury instructions as necessary before the jury begins its deliberations. See, e.g., Fed. R. Civ. P. 51(c). Failure to do so will waive the right to have the instruction considered on appeal. See, e.g., ChooseCo, LLC v. Lean Forward Media, LLC, 364 Fed. Appx. 670, 672 (2d Cir. 2010) (finding that defendant’s objection to jury instructions and verdict form during jury deliberations did not comply with Fed. R. Civ. P. 51(c) and noting that the “[f]ailure to object to a jury instruction or the form of an interrogatory prior to the jury retiring results in a waiver of that objection.”).

Additionally, when you lodge your objections, make sure you explain why the jury charge is in error since general objections are insufficient. See, e.g., Victory Outreach Center v. Meslo, 281 Fed. Appx. 136, 139 (3d Cir. 2008) (holding that general objection to the court’s jury instructions and proposed alternative instructions, “were insufficient to preserve on appeal all potential challenges to the instructions” and were not in compliance with Fed. R. Civ. P. 51(c)(1)). If possible, have a set of written objections to the other side’s jury charges, and get the judge to rule on that, since judges like to hold such conferences off the record.

Also, do not overlook the verdict form. Know that when you agree to a particular form (general or special), that will mean that you are probably taking certain risks and waiving certain arguments one way or the other. Give this thought, and make sure that you know the rules of your jurisdiction on verdict forms so you can object if necessary. See, e.g., Palm Bay Intern., Inc. v. Marchesi Di Barolo S.P.A., 796 F.Supp. 2d 396, 409 (E.D.N.Y. 2011) (objection to verdict sheet should be made before jury retires); Saridakis v. South Broward Hosp. Dist., 2010 WL 2274955, at *8 (S.D. Fla. 2010) (noting that Federal Rule of Civil Procedure 51(c)(2)(B) states that an objection is timely if “a party objects promptly after learning that the instruction or request will be … given or refused” and that the Eleventh Circuit “require[s] a party to object to a … jury verdict form prior to jury deliberations” or the party “waives its right to raise the issue on appeal.”). (internal quotations and citation omitted).

Finally, pay careful attention to the closing argument. This can be an area where winning at trial by convincing a jury may be at odds with preserving the issue on appeal. On the flip side, many litigators are loath to interrupt a closing argument to object. If you need to object to preserve an issue, do so.

Post-Judgment – Final Things to Consider

First, determine whether certain arguments must be made post-judgment to preserve those arguments for appeal. Some arguments (such as those attacking the sufficiency of the evidence) must be made at that time or they are waived. See, e.g., Webster v. Bass Enterprises Production Co., 114 Fed.Appx. 604, 605 (5th Cir. 2004) (holding that failure to challenge back pay award in post-judgment motion waived the issue on appeal absent exceptional circumstances that did not exist). Written motions post-judgment should include all relevant references to trial transcripts and evidence to make as complete and clean a factual record as possible.

Second, when the appellate record is being compiled, carefully double check the record to ensure its accuracy. Many times the trial court clerk or court reporter accidentally omits portions of the record. If this is not caught and corrected in a timely manner, you may be stuck with a bad record. Most jurisdictions have procedures in place for supplementing and correcting the record but understand them well in advance so there is adequate time to address any discrepancies before the appellate briefing is due.

Conclusion

Too often even seasoned trial lawyers get tripped up on appeal by not having an orderly and complete record. As a Pro Se litigator, you must never lose sight of the factual and legal issues in a case and what an appellate court will need to consider in making the desired determinations. As demonstrated above, a winning record requires thought at all stages of the litigation, not just when the notice of appeal is filed. With proper preparation, attention to detail, and forethought, one can ensure that the proper record on appeal is never in doubt.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

 

What Homeowners Must Know About Mortgage Fraud Schemes

11 Sunday Mar 2018

Posted by in Affirmative Defenses, Banks and Lenders, Federal Court, Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Landlord and Tenant, Legal Research, Litigation Strategies, Loan Modification, MERS, Mortgage Laws, Mortgage mediation, Non-Judicial States, Pleadings, Pro Se Litigation, Scam Artists, Title Companies, Trial Strategies, Your Legal Rights

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Mortgage fraud has continued to increase since the 2005. Declining economic conditions, liberal underwriting standards, and declining housing values contributed to the increased level of fraud. Market participants are perpetrating mortgage fraud by modifying old schemes, such as property flip, builder-bailout, and short sale fraud, as well as employing newer schemes, such as buy and bail, reverse mortgage fraud, loan modification, refinance fraud, and mortgage servicing fraud.

This Post defines schemes as the big picture or secret plan of action used to perpetrate a fraud. There are a variety of “schemes” by which mortgage fraud can take place. These schemes can involve individuals inside the financial institution or third parties. Various combinations of these schemes may be implemented in a single fraud. The descriptions provided below are examples of traditional and emerging schemes that are used to facilitate mortgage fraud.

Builder Bailout
This scheme is used when a builder, who has unsold units in a tract, subdivision, or condominium complex, employs various fraudulent schemes to sell the remaining properties.

Buy and Bail
This scheme typically involves a borrower who is current on a mortgage loan, but the value of the house has fallen below the amount owed. The borrower continues to make loan payments, while applying for a purchase money mortgage loan on a similar house that cost less due to the decline in market value. After obtaining the new property, the borrower “walks” or “bails” on the first loan.

Chunking
Chunking occurs when a third party convinces an uninformed borrower to invest in a property (or properties), with no money down and with the third party acting as the borrower’s agent. The third party is also typically the owner of the property or part of a larger group organizing the scheme. Without the borrower’s knowledge, the third party submits loan applications to multiple financial institutions for various properties. The third party retains the loan proceeds, leaving the borrower with multiple loans that cannot be repaid. The financial institutions are forced to foreclose on the properties.

Double Selling
Double selling occurs when a mortgage loan originator accepts a legitimate application and documentation from a buyer, reproduces or copies the loan file, and sends the loan package to separate warehouse lenders to each fund the loan.

Equity Skimming
Equity skimming is the use of a fraudulent appraisal that over-values a property, creating phantom equity, which is subsequently stripped out through various schemes.

Fictitious Loan
A fictitious loan is the fabrication of loan documents or use of a real person’s information to apply for a loan which the applicant typically has no intention of paying. A fictitious loan can be perpetrated by an insider of the financial institution or by external parties such as loan originators, real estate agents, title companies, and/or appraisers.

Loan Modification and Refinance Fraud
This scheme occurs when a borrower submits false income information and/or false credit reports to persuade the financial institution to modify or refinance the loan on more favorable terms.

Mortgage Servicing Fraud
This fraud is perpetrated by the loan servicer and generally involves the diversion or misuse of loan payments, proceeds from loan prepayments, and/or escrow funds for the benefit of the service provider.

Phantom Sale
This scheme generally involves an individual or individuals who falsely transfer title to a property or properties and fraudulently obtain funds via mortgage loans or sales to third parties.

Property Flip Fraud
A fraudulent property flip is a scheme in which individuals, businesses, and/or straw borrowers, buy and sell properties among themselves to artificially inflate the value of the property.

Reverse Mortgage Fraud
Reverse Mortgage Fraud involves a scheme using a reverse mortgage loan to defraud a financial institution by stripping legitimate or fictitious equity from the collateral property.

Short Sale Fraud
Fraud occurs in a short sale when a borrower purposely withholds mortgage payments, forcing the loan into default, so that an accomplice can submit a “straw” short-sale offer at a purchase price less than the borrower’s loan balance. Sometimes the borrower is truly having financial difficulty and is approached by a fraudster to commit the scheme. In all cases, a fraud is committed if the financial institution is misled into approving the short-sale offer, when the price is not reasonable and/or when conflicts of interest are not properly disclosed.

Two additional fraud schemes, which are briefly addressed below, are debt elimination and foreclosure rescue schemes. While these schemes are typically not perpetrated directly on financial institutions, and therefore not expanded upon to the same degree as the above-mentioned schemes, the end result of the scheme can have a negative impact on the financial institution.

COMMON MECHANISMS OF MORTGAGE FRAUD SCHEMES

This Post Paper defines mechanism as the process by which fraud is perpetrated. A single mortgage fraud scheme can often include one or more mechanisms and may involve collusion between two or more individuals working in unison to implement a fraud.

The following is a list of common mechanisms used to perpetrate mortgage fraud schemes:

Asset Rental
Cash or other assets are temporarily placed in the borrower’s account/possession in order to qualify for a mortgage loan. The borrower usually pays a “rental” fee for the temporary “use” of the assets.

Fake Down Payment
In order to meet loan-to-value requirements, a fake down payment through fictitious, forged, falsified, or altered documents is used to mislead the lender.

Fraudulent Appraisal
Appraisal fraud can occur when an appraiser, for various reasons, falsifies information on an appraisal or falsely provides an inaccurate valuation on the appraisal with the intent to mislead a third party.

Fraudulent Documentation
Fraudulent documentation consists of any forged, falsified, incomplete, or altered document that the financial institution relied upon in making a credit decision.

Fraudulent Use of Shell Company
A business entity that typically has no physical presence, has nominal assets, and generates little or no income is a shell company. Shell companies in themselves are not illegal and may be formed by individuals or business for legitimate purposes. However, due to lack of transparency regarding beneficial ownership, ease of formation, and inconsistent reporting requirements from state to state, shell companies have become a preferred vehicle for financial fraud schemes.

Identify Theft
Identity theft can be defined as assuming the use of another person’s personal information (e.g., name, SSN, credit card number, etc.) without the person’s knowledge and the fraudulent use of such knowledge to obtain credit.

Straw/Nominee Borrower
An individual used to serve as a cover for a questionable loan transaction.

COMMON PARTICIPANTS
Various individuals participate in mortgage fraud schemes. The following list consists of common participants in such schemes and each is linked to the glossary:

Appraiser – One who is expected to perform valuation services competently and in a manner that is independent, impartial, and objective.

Processor – The processor is an individual who assembles all the necessary documents to be included in the loan package.

Borrower – One who receives funds in the form of a loan with the obligation of repaying the loan in full with interest. The borrower may be purchasing property, refinancing an existing mortgage loan, or borrowing against the equity of the property for other purposes.

Real Estate Agent – An individual or firm that receives a commission for representing the buyer or seller, in a RE purchase transaction.

Buyer – A buyer is a person who is acquiring property.

Seller – Person offering to sell a piece of real estate.

Closing/Settlement Agent – An individual or company that oversees the consummation of a mortgage transaction at which the note and other legal documents are signed and the loan proceeds are disbursed. Title companies, attorneys, settlement agents, and escrow agents can perform this service. Local RE law may dictate the party conducting the closing.

Title Agent – The title agent is a person or firm that is authorized on behalf of a title insurer to conduct a title search and issue a title insurance report or title insurance policy.

Loan Servicer – A loan servicer is a public or private entity or individual engaged to collect and process payments on mortgage loans.

Underwriter – The credit decision-making process which can be automated, manual or a combination of both. In an automated process, application information is entered into a decision-making model that makes a credit determination based on pre-determined criteria. In a manual process an individual underwriter, usually an employee of the financial institution, makes the credit decision after evaluating all of the information in the loan package, including the credit report, appraisal, and verification of deposit, income, and employment. Financial institutions often use a combination of both, with the automated decision representing one element of the overall credit decision. In each case, the decision may include stipulations or conditions that must be met before the loan can close.

Originator – The individual or entity that gathers application data from the borrower. Alternatively, a person or entity, such as a loan officer, broker, or correspondent, who assists a borrower with the loan application.

Warehouse Lender – A short-term lender for mortgage bankers. Using mortgage loans as collateral, the warehouse lender provides interim financing until the loans are sold to a permanent investor.

CONCLUSION
Mortgage fraud continues to result in significant losses for financial institutions, as well as, the Homeowners. It is imperative that homeowners understand the nature of the various schemes and recognize red flags related to mortgage fraud. This knowledge and use of best practices will help with the prevention of mortgage fraud, and financial losses to the homeowner.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

 

How Homeowners Can Greatly Improve their Chances of Winning on Appeal

24 Wednesday Jan 2018

Posted by in Appeal, Case Laws, Case Study, Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Note - Deed of Trust - Mortgage, Pleadings, Pro Se Litigation, Scam Artists, Title Companies, Trial Strategies, Your Legal Rights

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A seasoned Attorney will tell you that trying cases is one of the most exciting things a litigator does during his or her career but it is also certainly one of the most stressful. While in the trenches during trial, many litigators understandably focus all of their energies on winning the case at hand. But a good litigator knows that trial is often not the last say in the outcome of a case. The final outcome often rests at the appellate level, where a successful trial outcome can be affirmed, reversed, or something in between. The likelihood of success many times hinges on the substance of the record on appeal. The below discusses a variety of issues that trial litigators should keep in mind as they prepare and present their case so they position themselves in the best possible way for any appeals that follow.

Prepare Your Appellate Record From The Moment Your Case Begins

Perhaps one of the biggest misconceptions regarding preserving an adequate record on appeal is when a lawyer should start considering what should be in the record. In short, the answer is from the moment the complaint is filed. At that time, counsel should begin to think carefully about the elements of each asserted cause of action, potential defenses and their required elements, and the burden of proof for each. Every pleading should be drafted carefully to ensure that no arguments are waived in the event they are needed for an appeal. For instance, a complaint should allege with specificity all the factual and legal elements necessary to sustain a claim, while an answer should include any and all applicable affirmative defenses to avoid waiver. See, e.g., Travellers Int’l, A.G. v. Trans World Airlines, 41 F.3d 1570, 1580 (2d Cir. 1994) (“The general rule in federal courts is that a failure to plead an affirmative defense results in a waiver.”). Likewise, if you file a motion to dismiss, ensure that the motion contains all the necessary evidence that both a trial court and appellate court would need to find in your favor. Of particular importance in federal court practice is the pre-trial order. Under Federal

Rule of Civil Procedure 16, the pre-trial order establishes the boundaries of trial. See Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998) (“It is a well-settled rule that a joint pre-trial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial.”). If the pre-trial order does not contain the pertinent claims, defenses or arguments that you wish to present at trial, you are likely also going to be out of luck on appeal.

Later on in the case, as the factual record becomes more fully developed, consider whether amending or supplementing the pleadings or other court submissions are necessary to make the record as accurate as possible. Most states follow the federal practice of allowing liberal amendments. However, these can be contested, particularly late in the process, closer to trial. While appellate review is often for abuse of discretion, formulating a strong motion in favor of or in opposition to an amendment can preserve the issue.

What to Keep in Mind as Your Case Proceeds

As the case develops, consider whether the elements you need to prove your case are sufficiently reflected in the information you obtain during discovery. If not, determine whether there are ways to obtain the information you need well before trial starts. By the time trial arrives, it may be too late to supplement the record to get before the trial judge and the appellate court what you need to win your case. In that regard, anything you have in writing that gets submitted to the court may very well end up being part of the record on review, so make sure it is accurate and understandable. Incomprehensible or incomplete submissions can muddy your appellate record and damage a successful appellate proceeding. In the same vein, make sure anything presented to the court prior to trial that you want to be part of the record is transcribed. Otherwise, there will be an insufficient record on appeal. This is particularly so when it comes to discovery disputes. Although they are common in present day litigation, judges hate discovery disputes. To preserve discovery issues for appeal, be sure to get a ruling, and make sure it is reflected in writing. Moreover, carefully review every pre-trial court order or other judicial communication, including court minutes, to ensure accuracy. Attempting to make corrections during the appellate process may not be possible.

Another significant area for appellate issues is the failure to timely identify experts. This is subject to an abuse of discretion standard of review, so it is important that one builds a record on the issue, particularly regarding any prejudice suffered by the untimely disclosure.

After Discovery Closes – The Motion in Limine

Once discovery has closed, consider carefully any motions in limine you may want to make. Although motions in limine are not strictly necessary, they are helpful in identifying evidentiary issues for the judge and counsel and increase the chances of a substantive objection, sidebar, and ruling when the issue arises at trial. One potential pitfall – some jurisdictions require a party to renew an objection at trial after a motion in limine has been denied, so make sure to do so if necessary. See, e.g., State ex. Rel Missouri Highway and Transp. Com’n v. Vitt, 785 S.W.2d 708, 711 (Mo. Ct. App. E.D. 1990) (“A motion in limine preserves nothing for review. Following denial of a motion in limine, a party must object at trial to preserve for appellate review the point at issue.”) (internal citation omitted). Also, if the Court delivers its ruling on a motion in limine orally, make sure it is transcribed properly by the court reporter.

Now the Trial – What to Keep in Mind

Above all else, when in doubt, object. Objections should be immediate and specifically describe the basis for the objection so the record is clear. Make the argument to win – every objection should be more than just reciting labels, and should provide sufficient information for the trial judge to decide the issue. The goal is not to be coy with the trial judge and hope for a lucky break, but to be prepared to make an argument to win the issue at trial or, alternatively, on appeal. In addition, if you are the party proffering the evidence, make sure the proffer is on the record and that you expressly state why the evidence is being offered. This may require pressing on the judge to get the full objection on the record. If you fail to do so, you risk the appellate court not reviewing the claim on appeal. See, e.g., National Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 274-75 (2010) (observing “purpose of a proffer is to make an adequate record of the evidence to be introduced … [and] preserves the issue for appeal and provides the appellate court an adequate record to review when determining whether the trial court erred in excluding the evidence.”). Also, always be careful of waiving any issues for appeal by agreeing to a judge’s proposed compromise on evidentiary issues.

An important but often overlooked consideration is the courtroom layout and dynamics. Well-thought and timely objections will be for naught if they are not transcribed. Sometimes the courtroom layout can make record preservation difficult. For example, if objections are made at sidebar conferences where the court reporter is not present, those objections may not make their way into the appellate record or be dependent on the after the fact recollections of others. See, e.g., Ohio App. R. 9(c) (describing procedures for preparing statement of evidence where transcript of proceedings is unavailable and providing trial court with final authority for settlement and approval). This should be avoided whenever possible.

Beyond objections, make sure all the evidence you need for your appeal is properly admitted by the trial court before the close of your case. All exhibits that were used at trial should be formally moved into evidence if there is any doubt as to whether they will be needed on appeal. If you had previously moved for summary judgment and lost, make sure you take the necessary steps at trial to preserve those summary judgment issues, especially in jurisdictions that do not allow interlocutory appeals.

Another important aspect of the trial is the jury instructions. Jury instructions should always be complete. Remember that the instructions you propose can be denied without error if any aspect of them is not accurate, so break them into small bites so that the judge can at least accept some parts. Specifically object to any jury instructions as necessary before the jury begins its deliberations. See, e.g., Fed. R. Civ. P. 51(c). Failure to do so will waive the right to have the instruction considered on appeal. See, e.g., ChooseCo, LLC v. Lean Forward Media, LLC, 364 Fed. Appx. 670, 672 (2d Cir. 2010) (finding that defendant’s objection to jury instructions and verdict form during jury deliberations did not comply with Fed. R. Civ. P. 51(c) and noting that the “[f]ailure to object to a jury instruction or the form of an interrogatory prior to the jury retiring results in a waiver of that objection.”).

Additionally, when you lodge your objections, make sure you explain why the jury charge is in error since general objections are insufficient. See, e.g., Victory Outreach Center v. Meslo, 281 Fed. Appx. 136, 139 (3d Cir. 2008) (holding that general objection to the court’s jury instructions and proposed alternative instructions, “were insufficient to preserve on appeal all potential challenges to the instructions” and were not in compliance with Fed. R. Civ. P. 51(c)(1)). If possible, have a set of written objections to the other side’s jury charges, and get the judge to rule on that, since judges like to hold such conferences off the record. Also, do not overlook the verdict form. Know that when you agree to a particular form (general or special), that will mean that you are probably taking certain risks and waiving certain arguments one way or the other. Give this thought, and make sure that you know the rules of your jurisdiction on verdict forms so you can object if necessary. See, e.g., Palm Bay Intern., Inc. v. Marchesi Di Barolo S.P.A., 796 F.Supp. 2d 396, 409 (E.D.N.Y. 2011) (objection to verdict sheet should be made before jury retires); Saridakis v. South Broward Hosp. Dist., 2010 WL 2274955, at *8 (S.D. Fla. 2010) (noting that Federal Rule of Civil Procedure 51(c)(2)(B) states that an objection is timely if “a party objects promptly after learning that the instruction or request will be … given or refused” and that the Eleventh Circuit “require[s] a party to object to a … jury verdict form prior to jury deliberations” or the party “waives its right to raise the issue on appeal.”). (internal quotations and citation omitted).

Finally, pay careful attention to the closing argument. This can be an area where winning at trial by convincing a jury may be at odds with preserving the issue on appeal. On the flip side, many litigators are loath to interrupt a closing argument to object. If you need to object to preserve an issue, do so.

Post-Judgment – Final Things to Consider

First, determine whether certain arguments must be made post-judgment to preserve those arguments for appeal. Some arguments (such as those attacking the sufficiency of the evidence) must be made at that time or they are waived. See, e.g., Webster v. Bass Enterprises Production Co., 114 Fed.Appx. 604, 605 (5th Cir. 2004) (holding that failure to challenge back pay award in post-judgment motion waived the issue on appeal absent exceptional circumstances that did not exist). Written motions post-judgment should include all relevant references to trial transcripts and evidence to make as complete and clean a factual record as possible

Second, when the appellate record is being compiled, carefully double check the record to ensure its accuracy. Many times the trial court clerk or court reporter accidentally omits portions of the record. If this is not caught and corrected in a timely manner, you may be stuck with a bad record. Most jurisdictions have procedures in place for supplementing and correcting the record but understand them well in advance so there is adequate time to address any discrepancies before the appellate briefing is due.

Conclusion

Too often even seasoned trial lawyers get tripped up on appeal by not having an orderly and complete record. A litigator must never lose sight of the factual and legal issues in a case and what an appellate court will need to consider in making the desired determinations. As demonstrated above, a winning record requires thought at all stages of the litigation, not just when the notice of appeal is filed. With proper preparation, attention to detail, and forethought, one can ensure that the proper record on appeal is never in doubt.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

What Homeowners Should Know About Appeals at the 9th Circuit

28 Monday Nov 2016

Posted by in Appeal, Bankruptcy, Fed, Federal Court, Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Landlord and Tenant, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, Trial Strategies, Your Legal Rights

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The Ninth Circuit uses a limited en banc system for en banc matters because of its size, with 11 judges comprising an en banc panel;

The Chief Judge is always one of the 11 en banc judges;

The Ninth Circuit currently has 29 active judges and 15 judges on senior status;

Active judges are expected to hear 32 days of oral arguments per year;

Judges are assigned to hear cases by rotation, and no preference is given for judges from those jurisdictions;

Oral argument are scheduled on certain dates;

Filings for are currently down 3% compared to last year;

Pro Se filings account for 51% of the documents filed with the court;

The largest category of pro se litigants are prisoners;

48% of all immigration appeals in the US are filed in the Ninth Circuit;

From the entry of the final order of the lower court or agency to final Ninth Circuit disposition: 32.6 months
From the filing of the law brief to oral argument or submission on briefs: 8.7 months in the Ninth Circuit (4.1 months nationally);

The court is permitted to move cases up in priority;

Priority is set by a staff attorney who assigns a number to each case based on a point system: 1, 2, 3, 5, 7, 10, and 24. Cases assigned 1 or 2 go to the screening panel for disposition. Cases assigned 24 always get oral argument, and involve matters like the death penalty. Cases assigned 3, 5, 7, or 10, will depend on the number of parties, the types of issues, etc. These cases may get oral argument, or be submitted on briefs;

The assignment of the panel of judges is separate from assignment of cases;

Panels are set 1 year in advance;

The clerk’s office assigns cases based on a formula that includes priority 99% of petitions for rehearing en banc are rejected – a judge on the court must initiate the process for en banc rehearing, and a judge may do so even if there is no petition for rehearing en banc filed;

If there is a second appeal to the court in the same case, the case is first presented to the original panel to see if they want to decide the second appeal – usually the panel will take back the case in approximately 1/4 to 1/3 of cases – if you want the same panel, file a motion to ask to have the case assigned to the same panel, but give good reasons why;

Generally, most general civil appeals where the parties are represented by attorneys will get set for oral argument – but about 20-25% that are assigned to oral argument will ultimately be submitted on briefs instead.

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What Homeowners Must Know About Jurisprudential Exceptions to the Final Judgment

02 Saturday Apr 2016

Posted by in Appeal, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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Manu Homeowners in foreclosure litigations are confused as to what Court Orders should or should not be appealled. This post is designed to help clear those confusions as to what is appealable.

The primary gatekeeper at the door to the federal courts of appeals is the rule that only final judgments are appealable. The final judgment rule has performed this role well, for the most part. In certain cases, however, a trial court’s error on an interlocutory issue is effectively unreviewable on appeal from a final judgment. To deal with this type of injustice, the courts and Congress have created a patchwork of exceptions to the final judgment rule.

A. Collateral Order Doctrine:

The collateral order doctrine is sometimes called the Cohen collateral order doctrine, named for the landmark United States Supreme Court decision, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). When we talk about an order being final and appealable under the collateral order doctrine, we are still talking about an order that is appealable under section 1291.
The general rule is that “a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation can be ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994). Accordingly, as noted in the preceding section, a decision is ordinarily considered final and appealable under section 1291 only if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945); see Digital Equip., 511 U.S. at 863 (quoting Catlin). The Supreme Court has recognized, however, “a narrow class of collateral orders which do not meet this definition of finality, but which are nevertheless immediately appealable under § 1291.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996). “Since Cohen, [the Supreme Court has] had many opportunities to revisit and refine the collateral-order exception to the final-judgment rule.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988).

1. Three-prong test for the collateral order doctrine.

The Supreme Court has articulated a threeprong test to determine whether an order that does not finally resolve litigation is nonetheless appealable under section 1291. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
First, the order must “conclusively determine the disputed question.” Id. Second, the order must “resolve an important issue completely separate from the merits of the action.” Id. Third and finally, the order must be “effectively unreviewable on appeal from a final judgment.” Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (quoting Coopers & Lybrand, 437 U.S. at 468); accord Cunningham v. Hamilton County, 527 U.S. 198, 202 (1999) (“[C]ertain orders may be appealed, notwithstanding the absence of final judgment, but only when they ‘are conclusive, . . . resolve important questions separate from the merits, and . . . are effectively unreviewable on appeal from the final judgment in the underlying action.’” (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 42 (1995))); see also Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 490-91 (5th Cir. 2001) (restating the Cohen test as a four-step analysis: the decision (1) cannot be tentative, informal, or incomplete; (2) must deal with claims of right separable from, and collateral to, rights asserted in the action; (3) must be effectively unreviewable on the appeal from final judgment; and (4) must involve an issue too important to be denied review).

Under the first prong—that the order conclusively determine the disputed question—the Supreme Court has observed that there are two kinds of nonfinal orders: those that are “inherently tentative,” and those that, although technically amendable, are “made with the expectation that they will be the final word on the subject addressed.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 n.14 (1983). The latter category of orders meets the first prong of the collateral order doctrine.
Under the second prong—that the issue be separate from the merits—the Court has described it as a “distillation of the principle that there should not be piecemeal review of ‘steps towards final judgment in which they will merge.’” Moses H. Cone, 460 U.S. at 12 n.13 (quoting Cohen, 337 U.S. at 546). A classic case meeting the third p r o n g of the c o l l a t e r a l o r d e r doctrine—unreviewable on appeal from a final judgment—are denials of immunity from suit. As the Fifth Circuit explained in a recent case involving an appeal from a district court order denying a sheriff’s motion for summary judgment in an “official capacity” suit,

Official-capacity suits, in contrast [to
personal-capacity suits], ‘generally
represent only another way of pleading
an action against an entity of which an
officer is an agent.’” . . . [T]he plea
[here] ranks as a ‘mere defense to
liability’” [rather than immunity from
suit]. Because an erroneous ruling on
liability may be reviewed effectively on
appeal from final judgment, the order
denying the Sheriff’s summary
judgment motion in this “official
capacity” suit was not an appealable
collateral order.

Burge v. Parish of St. Tammany, 187 F.3d 452, 476-77 (5th Cir. 1999) (citations omitted); see Cunningham, 527 U.S. at 202. As its stringent requirements indicate, the collateral order doctrine is not to be applied liberally. “Rather, the doctrine “is ‘extraordinarily limited’ in its application.” Pan E. Exploration Co. v. Hufo Oils, 798 F.2d 837, 839 (5th Cir. 1986). Moreover, appealability under the collateral order doctrine must be determined “without regard to the chance that the litigation might be speeded, or a ‘particular injustice’ averted by a prompt appellate court decision.” Digital Equip., 511 U.S. at 868.

2. Examples of orders appealable under the collateral order doctrine.

A. Orders denying claims of immunity from suit asserted in a motion to dismiss or motion for summary judgment when the order is based on a conclusion of law:

  • Qualified immunity. Swint, 514 U.S. at 42 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); Gentry v. Lowndes County, 337 F.3d 481, 484 (5th Cir. 2003); Martinez v. Tex. Dep’t of Crim. Justice, 300 F.3d 567, 576 (5th Cir. 2002).
  • Immunity under the Foreign Sovereign Immunities Act. Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 385 (5th Cir. 1999); Stena Rederi A.B. v. Comision de Contratos, 923 F.2d 380, 385-86 (5th Cir. 1991).
  • Absolute immunity. Swint, 514 U.S. at 42 (citing Mitchell, 472 U.S. at 526, and Nixon v. Fitzgerald, 457 U.S. 731 (1982)).
  • Eleventh Amendment immunity. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); Martinez v. Tex. Dep’t of Crim. Justice, 300 F.3d 567, 573 (5th Cir. 2002); Reickenbacker v. Foster, 274 F.3d 974, 976 (5th Cir. 2001); see also Sherwinski v. Peterson, 98 F.3d 849, 851 (5th Cir. 1996) (denial of state’s motion to dismiss is appealable even if the district court’s order is not based on an express finding of no immunity if the end result is the same).
  • Refusal to rule on a claim of immunity from suit. Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986).
  • Successive appeal of denial of qualified immunity defense. Behrens v. Pelletier, 516 U.S. 299 (1996) (holding that there can be two interlocutory appeals under the collateral order doctrine of denials of qualified immunity defenses in the same case: one appeal from the denial of a motion to dismiss, and a second appeal from the denial of a motion for summary judgment).
  •  B. Abstention-based stay, dismissal, and remand orders:
  • Under Colorado River abstention. Moses H. Cone, 460 U.S. at 9 (abstention-based stay order).
  • Under Burford abstention. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (abstention-based remand order).
  • Under Pullman abstention. Moses H. Cone, 460 U.S. at 9 & n.8 (citing Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962)).

A district court order abstaining may take the form of an abstention-based stay order or an abstentionbased remand order. The Supreme Court addressed the appealability of abstention-based remand orders in Quackenbush. Most “remand” orders—those remanding removed cases back to state court for lack of subject-matter jurisdiction—are not reviewable by appeal or otherwise because of the bar to appellate review embodied in 28 U.S.C. § 1447(d). See Quackenbush, 517 U.S. at 714. If, on the other hand, a district court remands a case to state court for a reason other than lack of subject-matter jurisdiction, for example, in the interest of docket congestion, the bar to review in section 1447(d) does not apply, and the decision is reviewable. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 352-53 (1976).

C. Pre-remand decisions made by a district court if that decision is “separable” from the remand order and independently reviewable through a mechanism such as the collateral order doctrine.

  • Dahiya v. Talmidge Int’l, Ltd., No. 02-31068, 2004 WL 1098838 (5th Cir. May 18, 2004) (citing City of Waco v. United States Fid. & Guar. Co., 293 U.S. 140 (1934); Heaton v. Monogram Credit Card Bank, 297 F.3d 416, 421 (5th Cir. 2002); Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 486 (5th Cir. 2001); Arnold v. State Farm Fire & Cas. Co., 277 F.3d 772, 776 (5th Cir. 2001); Linton v. Airbus Industrie, 30 F.3d 592, 597 (5th Cir. 1994); Angelides v. Baylor Coll. of Med., 117 F.3d 833, 837 (5th Cir. 1997)); Soley v. First Nat’l Bank, 923 F.2d 406, 410 (5th Cir. 1991); see also In re Benjamin Moore & Co., 318 F.3d 626 (5th Cir. 2002) (addressing the separable order doctrine to determine if collateral order doctrine conferred jurisdiction on the court to review the order of remand in a mandamus proceeding).

D. Order denying motions to intervene. Edward v. City of Houston, 78 F.3d 983, 992 (5th Cir. 1996) (en banc). But see Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987) (order granting motion to intervene but conditioning or restricting it is not immediately appealable; appeal must await final judgment).

E. Order deciding that plaintiff is not required to post security for payment of costs. Cohen, 337 U.S. at 547.

F. Order denying appointment of counsel to litigants who cannot afford counsel. Robbins v. Maggio, 750 F.2d 405 (5th Cir. 1985).

G. Order remanding action to state court pursuant to a contract between the parties. McDermott Int’l, Inc. v. Lloyds Underwriters, 944 F.2d
1199 (5th Cir. 1991).

H. Discovery orders directed to third parties. Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992) (Although discovery orders are normally reviewed by mandamus or on appeal from a contempt order, “A discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.”).

I. Pre-contempt appeals by the President of the United States to avoid unnecessary constitutional confrontations between two coordinate branches of government. See United States v. Nixon, 418 U.S. 683 (1974). (Watch out for the United States Supreme Court’s decision in Cheney v. United States District Court (No. 03-475), in which one of the issues before the Supreme Court is “whether the court of appeals had mandamus or appellate jurisdiction to review the district court’s unprecedented discovery orders in this litigation” that, unlike United States v. Nixon, accepted a claim of executive privilege? Cheney v. United States Dist. Court, 124 S. Ct. 1391 (2004) (denying motion to recuse); see Cheney v. United States Dist. Court, 124 S. Ct. 958 (2003) (No. 03-475) (granting certiorari)).

J. Order requiring turnover of documents claimed to be privileged as attorney work product when the documents are already in the court’s possession because, “if the court already has lawful possession of the documents, a subsequent turnover order will be immediately enforceable without the necessity of holding the subpoenaed party in contempt.” In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994) (citing Perlman v. United States, 247 U.S. 7 (1918)).

K. Turnover order allowing a receiver to take possession of and sell corporate assets of nonparties. Maiz v. Virani, 311 F.3d 334, 339 n.4 (5th Cir. 2002).

L. Order approving receiver’s plan to distribute assets of investment company whose assets were frozen after the SEC investigated it for securities fraud. SEC v. Forex Asset Mgmt. LLC, 242 F.3d 325, 330 (5th Cir. 2001).

M. Order refusing to modify a prior consent decree where enforcement of the consent decree ran afoul of the State’s Eleventh Amendment Immunity. Frazar v. Gilbert, 300 F.3d 530, (5th Cir. 2002) (finding order also reviewable under 28 U.S.C. § 1291(a) because it was an order “refusing to dissolve or modify” an injunction), rev’d on other grounds, Frew ex rel. Frew v. Hawkins, 124 S. Ct. 899 (2004).

N. Order determining that former Department of Justice attorneys were eligible to act as fact and expert witnesses for private party in civil rights suit brought by government. EEOC v. Exxon Corp., 202 F.3d 755, 757 (5th Cir. 2000).

O. Orders affecting the media’s First Amendment rights. United States v. Brown, 250 F.3d 907, 913 n.8 (5th Cir. 2001) (orders protecting juror anonymity (citing United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir. 1977)); Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001) (court closure orders or confidentiality orders (citing Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926 (5th Cir. 1996)); see also United States v. Brown, 218 F.3d 415, 420 (5th Cir. 2000) (gag order that applied to attorneys, parties, and witnesses and prohibited them from discussing case with any public communications media was appealable under the collateral order doctrine by criminal defendant in whose trial the gag order was issued). But see United States v. Edwards, 206 F.3d 461, 462 (5th Cir. 2000) (per curiam) (collateral order doctrine did not apply to criminal defendant’s motion to lift gag order).

3. Examples of orders not appealable under the collateral order doctrine.

A. Order denying a motion to stay or dismiss federal court litigation under Colorado River abstention. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988).

B. Order denying summary judgment motion based on Noerr-Pennington doctrine.
Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000).

C. Order denying claim of immunity from liability (as opposed to immunity from suit). Swint, 514 U.S. at 42 (citing Mitchell, 472 U.S. at 526).

D. Order denying claim of immunity from suit that turns on factual determinations. Stena Rederi A.B. v. Comision de Contratos, 923 F.2d 380, 385-86 (5th Cir. 1991). But cf. Mitchell, 472 U.S. at 528 (the resolution of legal issues which are appealable under the collateral order doctrine often will entail some “consideration of the factual allegations that make up the plaintiff’s claim for relief”).

E. Order denying claim of immunity from suit based on sufficiency of the evidence, i.e., whether there is a genuine issue of fact. Johnson v. Jones, 515 U.S. 304 (1995); Kinney v. Weaver, No. 00-40557, 2004 WL 811724, at *6 n.9 (5th Cir. Apr 15, 2004); Martinez v. Tex. Dep’t of Crim. Justice, 300 F.3d 567, 576 (5th Cir. 2002) (“For a qualified immunity appeal, however, our review of any factual disputes is limited to their materiality, not their genuineness.”).

F. In rare instances, denial of claims of immunity on the eve of trial. Edwards v. Cass County, 919 F.2d 273, 276 (5th Cir. 1990) (“If every denial of a motion for leave to file a summary judgment motion asserting qualified immunity were immediately appealable, defendants would have a guaranteed means of obtaining last-minute continuances. We read Mitchell v. Forsyth as affording defendants a reasonable opportunity to obtain review of their qualified immunity claims without losing part of their immunity rights by having to stand trial. However, Mitchell is not designed as an automatic exemption from the orderly processes of docket control.” “To hold otherwise would be to open the floodgates to appeals by defendants seeking delay by asserting qualified immunity at the last minute (or even, as here, following jury selection).”).

G. Order denying the summary judgment of government officials sued in their personal or individual capacities is not an appealable collateral order. Burge v. Parish of St. Tammany, 187 F.3d 452, 476-77 (5th Cir. 1999) (citing Swint, 514 U.S. at 42).

H. Order denying or granting stays pending arbitration. Rauscher Pierce Refsnes, Inc. v. Birenbaum, 860 F.2d 169 (5th Cir. 1988).

I. Order denying certification of a class. Coopers & Lybrand, 437 U.S. at 935 (now appealable by permission under Rule 23(f)).

J. Order denying motion to disqualify counsel. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981).

K. Order granting motion to disqualify. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985)

L. Order refusing to enforce a settlement agreement claimed by a party to protect it from suit. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994).

M. Order denying a motion to dismiss based on the invalidity of service of process claiming immunity from such process. Van Cauwenberghe v. Baird, 486 U.S. 517, 521 (1988).

N. Orders concerning post-judgment discovery. Piratello v. Philips Elecs. N. Am. Corp., 360 F.3d 506, 508 (5th Cir. 2004) (order compelling party to appear at a deposition by a particular date, to answer questions regarding assets, and to produce documents requested, over a claim of self-incrimination; no jurisdiction over district court’s order under 1291 or collateral order doctrine; instead, the remedy was by appealing a contempt order)

Piratello, 360 F.3d at 508 (“This court has indicated its agreement with the Fourth Circuit’s view that the availability of an appeal through a contempt order renders the collateral order doctrine inapplicable to discovery orders. See A-Mark Auction Galleries, 233 F.3d at 898-99 (noting, with approval, the holding of MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116, 119 (4th Cir. 1994)).”). In MDK, the Fourth Circuit said: “Courts have long recognized that a party sufficiently exercised over a discovery order may resist that order, be cited for contempt, and then challenge the propriety of the discovery order in the course of appealing the contempt citation. [citations omitted] Indeed, the Supreme Court has pointed to this path to appellate review as a reason why discovery orders are not appealable under Cohen.” MDK, Inc., 27 F.3d at 121

O. As a general matter, pre-trial discovery orders do not constitute final decisions under § 1291, and therefore, are not immediately appealable. See A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n, 233 F.3d 895, 897 (5th Cir. 2000) (citing Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992)); see Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981).
The Supreme Court has held that a party that wishes to immediately appeal a discovery order “must [first] refuse compliance, be held in contempt, and then appeal the contempt order.” Church of Scientology, 506 U.S. at 18 n.11 (citing United States v. Ryan, 402 U.S. 530 (1971)). See infra p. 43 (mandamus may also be available when the discovery order requires disclosure of information claimed to be privileged).

P. Order granting or denying a motion to transfer venue under section 1404(a). Brinar v. Williamson, 245 F.3d 515, 517-18 (5th Cir. 2001); La. Ice Cream Distribs. v. Carvel Corp., 821 F.2d 1031, 1033 (5th Cir. 1987).

Q. Order of civil contempt. FDIC v. LeGrand, 43 F.3d 163, 168 (5th Cir. 1995); Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990).

R. Order of an agency review board remanding to an ALJ for further factfinding and consideration before final agency decision is rendered. Exxon Chems. Am. v. Chao, 298 F.3d 464, 469-70 (5th Cir. 2002).

B. Other Common-Law Doctrines of Finality

1. Gillespie “pragmatic finality” doctrine

Under the Gillespie doctrine, the requirement of finality is to be given a practical rather than a technical construction in determining the appealability in marginal cases of an order falling within what the Gillespie decision called the “twilight zone” of finality. Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53 (1964). Counsel should avoid relying on the Gillespie doctrine.

The Supreme Court has distinguished Gillespie on grounds that, according to Professor Wright and his collaborators, “bury it quietly.” 15A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3913, at 479 (2d ed. 1992). In Coopers & Lybrand v. Livesay, the Supreme Court refused to apply the Gillespie doctrine to permit appeal from an order
decertifying a class action, even on the assumption that the result would be termination of the litigation. Rather than expanding Gillespie, the Court wrote that permitting such appeals under section 1291 would be plainly inconsistent with the policies underlying section 1292(b) and that “[i]f Gillespie were extended beyond the unique facts of that case, § 1291 would be stripped of all significance.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n.30 (1978) (noting that Gillespie concerned a marginally final order disposing of an unsettled issue of national significance and that review of the issue “unquestionably implemented the same policy Congress sought to promote in §1292(b)”).

In fact, the most recent pronouncement from the Fifth Circuit about the vitality of the Gillespie doctrine is that the Fifth Circuit “no longer recognizes the exception.” Kmart Corp. v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997); see Sherri A.D. v. Kirby, 975 F.2d 193, 202 n.12 (5th Cir. 1992) (calling practical finality more chimerical than real); United States v. Garner, 749 F.2d 281, 288 (5th Cir. 1985) (pragmatic finality approach has been virtually limited to facts of Gillespie). As the Fifth Circuit explained, Gillespie’s case-by-case approach to determining pragmatic finality is in fundamental conflict with the values and purposes of the final-judgment rule. See Pan E. Exploration Co. v. Hufo Oils, 798 F.2d 837, 841-42 (5th Cir. 1986); Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir. 1984) (en banc).

If counsel finds a case supporting finality that sounds like it is based on practical or pragmatic finality, counsel should carefully trace the cases supporting the theory of finality to make sure that Gillespie is not the ultimate source of authority for that theory. An opinion’s pedigree is important. Counsel should make an informed decision about relying on those cases that rely on or are indirect progeny of Gillespie.

2. “Death knell” doctrine

Under the “death knell” doctrine, which is sometimes equated with the Gillespie doctrine, a case is final when a party is “effectively out of court.” Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962); see McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982). The doctrine provides that any decision forcing a plaintiff to give up his claim, in effect, sounds the “death knell,” making it final for purposes of appeal. Coopers & Lybrand, 437 U.S. at 465-69.

Like the Gillespie doctrine, many commentators have argued that the death knell doctrine is all but a dead letter. Although the Fifth Circuit in the past noted that the Supreme Court did not actually overrule the death knell doctrine in Coopers & Lybrand, see McKnight, 667 F.2d at 479, the Fifth Circuit noted that the U.S. Supreme Court’s post-Cooper decision “in Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), declared that its prior decision in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), sounded the death knell to that doctrine.” Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1103 n.3 (5th Cir. Feb. 1981).

And, more recently, the Fifth Circuit observed that the Supreme Court did “limit the death knell exception” in Coopers & Lybrand and in its later decision, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 10 n.11 (1983). See Kmart Corp. v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997).

In Moses H. Cone, the Supreme Court held that Idlewild’s reasoning was limited to abstention or similar doctrines where all or an essential part of the federal suit goes to a state forum. Aronds, 123 F.3d at 300. Further, even in cases involving stays, the Fifth Circuit has stated that while it liberally construed the death knell exception in the past, it could no longer do so because the exception was limited to cases where the stay requires all or essentially all of the suit to be litigated in state court. See Aronds, 123 F.3d at 300 (citing United States v. Garner, 749 F.2d 281, 288 (5th Cir. 1985), and Kershaw v. Shalala, 9 F.3d 11, 14 (5th Cir. 1993)). And even in cases involving abstention doctrines, resort to the death knell doctrine is usually unnecessary; direct reliance may be placed on Moses H. Cone and the Supreme Court’s more recent decision in Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996).

3. Forgay “hardship–irreparable injury” exception

The Forgay doctrine, or, as it is sometimes called the “hardship and irreparable injury” exception to the final-judgment rule, grew out of Forgay v. Conrad, 47 U.S. (6 How.) 201 (1848). Today, the Forgay doctrine—if it has any continuing validity—is viewed a narrow exception to the final-judgment rule; it allows immediate appellate court review of district court orders that adjudicate part of one claim by directing the immediate delivery of property from one party to another, when there is the possibility that the losing party will experience irreparable harm or hardship if appeal of the execution is not allowed. Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 512 n.8 (6th Cir. 2001) (citing Forgay, 47 U.S. at 204); see also 15A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3910, at 328 (2d ed. 1992) (noting that the Forgay doctrine “is likely to be applied only to orders that improvidently direct immediate execution of judgments that involve part of the merits of a claim and are outside the limits of Rule 54(b)”).

Although the Forgay doctrine is occasionally cited, it—like the Gillespie and death knell doctrines—is probably a dead letter. Petties v. Dist. of Columbia, 227 F.3d 469, 473 (D.C. Cir. 2000) (“[W]e are not at all sure that Forgay has continuing vitality apart from the collateral order doctrine . . . .”); see Digital Equip., 511 U.S. at 868 (appealability under the collateral order doctrine must be determined “without regard to the chance that the litigation might be speeded, or a ‘particular injustice’ averted by a prompt appellate court decision”); see, e.g., Maiz v. Virani, 311 F.3d 334, 339 n.4 (5th Cir. 2002) (holding that it had appellate jurisdiction under the collateral order doctrine over an order directed at two nonparty corporations to turnover property “worth tens of millions of dollars”).
In fact, the two most recent Fifth Circuit cases citing the Forgay doctrine as a possible jurisprudential exception to finality were decided more than a decade ago. Goodman v. Lee, 988 F.2d 619, 626 (5th Cir. 1993) (citing Forgay for a narrow proposition, but distinguishing it); Lakedreams v. Taylor, 932 F.2d 1103, 1107 n.7 (5th Cir. 1991) (citing it in dicta).

The Forgay category of hardship finality is narrow, and according to the Wright & Miller treatise, has not generated a large number of appeals. 15A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3910 (2d ed. 1992). The most common, and the most expansive, jurisprudential exception to the finaljudgment rule is the collateral order doctrine.
Despite its stringent requirements and arguably limited applicability, the collateral order doctrine is the best chance of establishing appellate jurisdiction on a jurisprudential exception. Pan E. Exploration Co. v. Hufo Oils, 798 F.2d 837, 839 (5th Cir. 1986). But, if the facts of your case fit into the narrow and specific facts of the Forgay doctrine, counsel may wish to consider citing both the collateral order and Forgay doctrines and reviewing the Wright & Miller treatise’s treatment of the doctrine, which argues that “within its restricted sphere it provides a highly desirable elaboration of the final judgment rule.” 15A WRIGHT ET AL., supra, § 3910, at 329 (2d ed. 1996).

C. Procedure for Appealing Under the Collateral Order Doctrine

“An appeal taken under the collateral order doctrine is subject to all the usual appellate rules and time periods, including Rule 4 of the Federal Rules of Appellate Procedure.” United States v. Moats, 961 F.2d 1198, 1203 (5th Cir. 1992); see also Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 386 (5th Cir. 1999) (“While we said in Moats that appeals taken pursuant to the collateral order doctrine are subject to all of the usual appellate rules governing interlocutory appeals, we also specifically identified Rule 4.”). A party seeking to appeal under the collateral order doctrine should follow the appeal procedures under FED. R. APP. P. 4 that apply to appeals “as of right” from traditional final judgments (e.g., invoke the appellate court’s jurisdiction by filing a notice of appeal in the district court within the time specified by FED. R. APP. P. 4).

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

How Florida Homeowner’s Counsels Can Effectively Use Stay of Proceedings to Delay Monetary Restitution Judgments after Foreclosure Pending Appeal or Wrongful Foreclosure

01 Friday Jan 2016

Posted by in Foreclosure Defense, Litigation Strategies, Pleadings, Pro Se Litigation, State Court, Trial Strategies

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What are your options should a money judgment be entered against your client? Aside from payment, there is appeal. But how do you stop the execution of the judgment during the appeal? What are your options if the order is one not solely for the payment of money, or is not a final order? A stay is a tool that the court uses to manage litigation and protect the rights of parties during appeals. This article discusses the use of stays in Florida’s state court system.

Stays Involving Appellate Review

Stays are commonly sought by the losing party either to maintain the status quo during interlocutory appeals or to suspend the execution of money judgments. To determine your options after an order or final judgment has been entered against your client, start with Fla. R. App. P. 9.310. This rule controls all proceedings in the Supreme Court and the district courts of appeal, and all proceedings in which the circuit courts exercise their appellate jurisdiction over decisions of the county courts, “notwithstanding any conflicting rules of procedure.”1

First, you will see Rule 9.310 applies only to orders that are appealed. Stays of orders that are not appealable are not controlled by this rule. Second, this rule divides the universe of appealable orders into those that are judgments solely for the payment of money and all others. The rule opens with the following prescription applicable to all those other orders: “A party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.”

Let’s take apart this dense language and examine its pieces.

First, the trial court, the “lower tribunal,” has the power to stay its own orders.2 That makes sense. Florida’s constitution creates the right to appeal orders of various kinds in art. V, §4(b)(1). The party’s right to appeal an order would be empty if orders and judgments could not be stayed pending review.

With limited exception, the decision to grant, modify, deny, or craft the conditions of a stay is a discretionary act entrusted to the trial court, but the discretion is not unfettered. No matter whether the judgment is one for the payment of money, declaratory, or injunctive relief, the lower tribunal cannot require an appellant to file a supersedeas bond as a precondition of the appeal.3 The right to appeal is guaranteed by the state constitution and may not be abridged by a trial court. Rule 9.310(f) gives the appellate court the power to review a trial court’s stay order when an appeal has been commenced. This, too, makes sense. The subject matter of the appellate court’s jurisdiction could be mooted if the parties’ legal positions were inexorably altered by the execution of the judgment before the appeal was concluded.

A wide range of orders is subject to appellate review, and all those orders are subject to Rule 9.310. This includes final orders, the appealable nonfinal orders listed in Fla. R. App. P. 9.130, and orders reviewable by way of petition for writ of certiorari, prohibition, or mandamus.

Final orders end the trial court’s labor in an action, and they come in many forms. They may be money judgments, declaratory judgments, or decrees. They can all be stayed. Nonfinal orders that may be immediately appealed, and, therefore, that may be stayed by the operation of Rule 9.310, include orders that concern

• Venue;

• Injunctions;

• The determination of the jurisdiction of the person;

• The determination of the right to immediate possession of property, including orders pertaining to writs of replevin, garnishment, or attachment;

• The determination of the right to immediate monetary relief or child custody in family law matters;

• The determination of the entitlement of a party to arbitration, or to an appraisal under an insurance policy;

• Workers’ compensation immunity;

• The certification of a class;

• Immunity in a civil rights claim arising under federal law;

• Whether a governmental entity has taken action that has inordinately burdened real property;

• The appointment of a receiver.

A stay during the appeal of a nonfinal order may be necessary because “[i]n the absence of a stay, the trial court may proceed with all matters, including trial or final hearing,” provided that no final order may be entered until the appellate proceedings are concluded, pursuant to Rule 9.130(f). Finally, Rule 9.310 empowers the trial court to stay its nonfinal orders that are immediately reviewable by way of a petition for writ of certiorari, prohibition, or mandamus. If the circumstances of your case warrant the filing of such a petition, then they likely would justify the entry of a stay of the challenged order pending appellate review.

Asking the Trial Court for a Stay Pending Appellate Review
If your client’s situation requires a stay of the order while the appellate court reviews it, then you need to fashion a motion for stay and file it with the trial court. The trial court’s order or judgment is not stayed by the mere filing of a notice of appeal or petition for writ of certiorari,4 and, except for money judgments, a stay pending appeal is a matter entrusted to the trial court’s discretion.5 The trial court has the continuing jurisdiction to grant your stay, to lift it, or to modify it. The trial court may impose conditions, and it may alter those conditions in its discretion for the duration of the appellate proceedings.6

There are limits to the trial court’s discretion. The trial court cannot require, as a condition of the stay, the payment of the judgment holder’s attorneys’ fees.7 Only when fees are otherwise recoverable by contract or statute may the trial court condition a stay on the payment of attorneys’ fees in the event the appellant fails to prevail on appeal.

When to Move for a Stay — Timing Is Important

Rule 9.310(a) requires you to file a motion, and the language implies the motion be in writing. In practice, however, strict compliance with the rule may be unworkable. The trial court may issue an order granting relief to your opponent within a time frame shorter than would accommodate the filing and setting of a motion to stay. If you find yourself at a hearing and the judge rules against your client, and you conclude the ruling would cause substantial, irreparable injury to your client, then move ore tenus for a stay. Be sure to get a ruling on the record. Promptly get a written order.

Better yet, be prepared. If you know the hearing may result in an order that your client would appeal, file a conditional motion for stay. Notice it for hearing. Bring alternative proposed orders granting and denying your motion for stay. Head to court and argue for the best outcome, but be prepared to deal with the worst. If the trial court grants immediate relief against your client, then argue your motion for stay then and there. If the trial court denies your motion to stay, make sure you get the ruling on the record and a written order from the court. This will perfect your right to apply to the appellate court for a stay.

Remember, the rule provides for a stay only if you seek appellate review of the order. If you obtain a stay order, but you do not ultimately pursue an appellate remedy, then the authority supporting the stay provided by Rule 9.310 would end. Your opponent would have a very good argument to dissolve the stay that you have obtained because the court’s authority to do so, under this rule, ended on the last day you had to file your notice of appeal or your petition. An order from the lower tribunal staying the effect of its judgment or order is a nullity unless a notice of appeal or petition is actually filed.8

What Justifies Stay of Order Pending Appellate Review

The trial court’s wide discretion in crafting a stay is an invitation to be creative in your request for a stay. The remedy you request must suit your client’s needs, of course. The trial court anticipates that you will suggest a stay that does so. But it will more readily grant your request if the conditions in your proposed stay do no harm to your opponent and do not unduly delay the proceedings. Reasonable conditions may include that you file your notice of appeal or petition promptly, perhaps faster than permitted by the appellate rules; that other aspects of the litigation proceed unabated; or that you protect property, documents, or evidence in your possession from spoliation.

To obtain a stay from the appellate court, you should demonstrate that your client will likely prevail on appeal, and your client will suffer some substantial injury if the order is not stayed.

The appellate court applies this standard when deciding whether to issue a stay order.9 Following this outline makes for a strong argument in the trial court as well. The checklist for your motion to stay should include:

• Informing the trial court that it is empowered by Rule 9.310 to stay the order it has just entered;

• Notice to the court that you intend to file a notice of appeal or petition and the date you intend to file;

• A summary of the legal and factual grounds for the appeal;

• A discussion of the harm that will befall your client should the stay not be granted;

• Evidentiary support in the form of affidavits from your client attesting to any facts justifying the stay;

• A discussion of the effect of the stay on the progress of the case and specific proposals to keep other parts of the case moving forward;

• A demonstration that the stay will not harm your opponent.

A stay motion with these elements would be compelling. The affidavit can be used to authenticate papers, letters, emails, or other documents that you submit in support of your motion. Documents that are unauthenticated are generally not admissible, and the court may find they have no evidentiary weight.10

Finally, move for relief promptly and get a ruling as soon as possible. Although there is no time frame for making a motion to stay set within Rule 9.310, time does matter, and earlier is better than later. Waiting for weeks to ask for a stay undercuts your argument that the order imposes a substantial burden or injury on your client.

If Trial Court Denies Request for a Stay, Ask the Appellate Court

Rule 9.310 gives the trial court the power to issue or deny stays, but it also gives the appellate court the power to review those rulings. You must apply to the trial court first, though.11 If the lower tribunal refuses to grant the motion to stay, then review is sought in the appellate action by motion.12 The appellate court will review the lower tribunal’s order for an abuse of discretion.13 The trial court is presumed to know the case well, and the question to stay usually involves a mixture of fact and legal questions that the trial court is well-suited to decide.

Your appellate motion for stay should be filed as soon as possible, preferably as soon as your appellate case is commenced. To determine what should be included in your motion to the appellate court, consider what would convince the appellate judges that your client deserves a stay. First, they will need to see your trial court motion and the order denying it. They will need a succinct statement of the facts that apprises them of the nature of the appellate case and a discussion of the course of proceedings. They will need to know the legal question that you will ask them to resolve. To warrant issuance of a stay, for the purpose of preserving the status quo during the appellate proceeding, the movant must demonstrate a likelihood of success on the merits and the likelihood that harm would result if the stay were not granted.14

You will need to provide the appellate court an appendix of documents from the trial court file that includes the order on appeal, the pertinent hearing transcripts, and the moving and opposition papers related to the stay order. Include a progress docket report from the trial court. Take care to bind the documents with tabs or, better yet, number the pages. Mind the specific court’s requirements for submissions of appendices. You’ll find each district court’s requirements set out on their websites. If you have a question, call the clerk’s office at the appellate court.

Watch your timing. An appellate court cannot consider a motion if no appellate case has yet been commenced. Therefore, the notice of appeal or the filing of the petition must coincide with or precede your filing of the appellate motion to stay. Only once the appellate court establishes its own case are you free to file your motion. Filing a motion in the appellate court does not automatically suspend any order of the trial court, so be aware of your time limitations. If the motion is time-sensitive, say so in the motion, and inform the appellate court of the deadline by which you must act.

When Does the Stay End?

If the order is a final judgment, your stay will remain in effect until the conclusion of all appellate proceedings. Appellate proceedings typically conclude when the appellate court issues its mandate. The appellate clerk issues the mandate 15 days after the court issues its decision or “as may be directed by the [appellate] court.”15 So, if you intend to try an appeal to the Supreme Court, then you must consider whether to ask the appellate court to withhold issuance of its mandate until the Supreme Court either rejects your jurisdictional papers, or takes jurisdiction of the case and completes its review.16 Alternatively, you may ask the trial court to issue a new stay pending completion of Supreme Court proceedings.

Stays Not Involving Appellate Review

A trial court is invested with the power to stay the effect of any of its interlocutory orders, even if they are not appealable.17 But that power is not established by Rule 9.310. Rather, it is part of its inherent power to manage the case. The trial court may grant or deny a stay, and it can craft unique conditions for the stay and modify them as a case management tool. Whether it does so, and what conditions it imposes, is a matter for its broad discretion.18 If your client is on the receiving end of such a stay and objects to it, you may seek appellate review of that stay. But the jurisdiction of the appellate court to do so is not established by Rule 9.310(f), and review is not by motion. Instead, the appellate court reviews the trial court’s stay order by means of a petition for writ of certiorari. By demonstrating to the appellate court that the trial court’s stay has substantially curtailed some important right of your client, you can establish the appellate court’s jurisdiction to review the order. You’ll need to show the order departs from the essential requirements of law (meaning the order lacks a legal or factual basis), and you’ll need to show the stay causes a serious, irreparable injury to your client, one that cannot be remedied on appeal from the final judgment.19

What to Do with a Judgment Solely for Payment of Money

Trial courts have the power to stay execution of money judgments on a showing of “good cause” pursuant to Fla. R. Civ. P. 1.550(a). This is a discretionary decision, of course. But an automatic stay of a money judgment can be obtained under Fla. R. App. P. 9.310(b). This appellate rule requires the filing of a “good and sufficient bond” issued by a surety company authorized to do so in Florida. Rule 9.310(b) sets the amount of the bond as the principal amount of the judgment, plus two years of interest calculated at the statutory rate.20 Filing the bond dispenses with the need for filing a motion or obtaining a court order.21

Pursuant to Rule 9.310(b)(2), the state, or a public officer in their official capacity, or a board, commission, or other public body seeking review, is entitled to a stay without bond in most circumstances. The right is not absolute, but if you represent a government entity or official, you must keep this valuable right in mind.

A “good and sufficient bond” is one that is issued by an insurer authorized by the Office of Insurance Regulation to do so in Florida. A bond is commonly obtained through a commercial insurance broker. Brokers can be useful intermediaries to guide you through this process. The Office of Insurance Regulation maintains a website listing the scores of sureties authorized to conduct such business in Florida.22 Beware that unless you represent a substantial, established corporation, surety companies generally require posting 100 percent collateral in the form of an irrevocable letter of credit or a cash deposit.

A proper bond will contain the following elements: It will identify the surety, the principal, and the judgment holder, who is the obligee. The face of the bond will recite the surety’s undertaking to be bound to the court for the amount of the judgment, plus the two years of statutory interest up to the amount of the bond. The usual condition stated by the surety on the face of the bond is that if the judgment is satisfied or reversed on appeal, then the bond becomes void. The bond will be signed by both the principal and the surety.

The original bond is filed with the trial court under a notice of filing bond prepared by the lawyer. It is upon the filing of the bond that the automatic stay takes effect. If execution proceedings have already commenced, the filing of the bond does not act to undo the orders or negate the motions already filed or adjudicated. The filing of the bond at that late point only stays further execution.23

This procedure secures the judgment holder’s ability to collect its principal and interest, and it preserves the judgment creditor’s right to appeal. Beware that an automatic stay under this rule may, under certain conditions, be dissolved.24 In general, though, the discretion of the court to modify the terms of a bond is extremely limited. The lower tribunal may not increase or decrease the amount of the bond as set out in the rule or otherwise prejudice the creditor’s realistic chances of recovery at the conclusion of the appeal.25 When the appellate proceedings are concluded and the judgment is paid or reversed, be sure to obtain a written order from the trial court declaring that the bond is void, and the surety’s obligation is released.

Conclusion

The effective litigator will know how to use stays to the client’s advantage. Stays can be used to limit the effect of an order or stop the execution of a judgment. Trial courts have wide discretion in whether to grant or deny a stay and what conditions to put on a stay. Your client needs you to know how to obtain stays from the trial and appellate courts when their judgment day comes.

1 Fla. R. Jud. Admin. 2.130.

2 Holman v. Ford Motor Co., 239 So. 2d 40, 43 (Fla. 1st D.C.A. 1970) (“It seems well settled that interlocutory judgments or orders made during the progress of a case are always under the control of the court until final disposition of the suit, and they may be modified or rescinded upon sufficient grounds at any time before final judgment.”).

3 Fitzgerald v. Addison, 287 So. 2d 151 (Fla. 2d D.C.A. 1973).

4 Thames v. Melvin, 370 So. 2d 439 (Fla. 1st D.C.A. 1979).

5 Eicoff v. Denson, 896 So. 2d 795, 799 (Fla. 5th D.C.A. 2005) (affirming decision of trial court to deny motion to stay a judgment that restrained homeowner from violating restrictive deeds pending appeal).

6 Fla. R. App. P. 9.310(a).

7 City of Coral Gables v. Geary, 398 So. 2d 479 (Fla. 3d D.C.A. 1981).

8 State v. Budina, 879 So. 2d 16 (Fla. 2d D.C.A. 2004).

9 Perez v. Perez, 769 So. 2d 389 (Fla. 3d D.C.A. 1999).

10 Fla. Stat. §90.901 (“Authentication or identification of evidence is required as a condition precedent to its admissibility.”).

11 Mitchell v. Leon County School Board, 591 So. 2d 1032 (Fla. 1st D.C.A. 1991).

12 So. Fla. Apartment Ass’n v. Dansyear, 347 So. 2d 710 (Fla. 3d D.C.A. 1977).

13 Fla. R. App. P. 9.310(a). The lower tribunal has “continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.”

14 Perez v. Perez, 769 So. 2d 389 (Fla. 3d D.C.A. 1999).

15 Fla. R. App. P. 9.340(a).

16 Fla. R. App. P. 9.310(e).

17 Holman v. Ford Motor Co., 239 So. 2d 40, 43 (Fla. 1st D.C.A. 1970) (“It seems well settled that interlocutory judgments or orders made during the progress of a case are always under the control of the court until final disposition of the suit, and they may be modified or rescinded upon sufficient grounds at any time before final judgment.”).

18 REWJB Gas Invs. v. Land O’ Sun Realty, Ltd., 643 So. 2d 1107, 1108 (Fla. 4th D.C.A. 1994) (granting stay of eviction proceedings pending determination of declaratory judgment action on terms of lease).

19 Verlingo v. Telsey, 801 So. 2d 1009, 1010 (Fla. 4th D.C.A. 2001).

20 Fla. Stat. §55.03; Florida Department of Financial Services, Statutory Interest Rates, http://www.myfloridacfo.com/aadir/interest.htm (statutory rate of interest).

21 Wintter & Cummings v. Len-Hal Realty, Inc., 679 So. 2d 1224 (Fla. 4th D.C.A. 1996) (entry of court order is not necessary for bond to become effective as supersedeas bond); Fla. Coast Bank of Pompano Beach v. Mayes, 433 So. 2d 1033 (Fla. 4th D.C.A. 1983), petition for review dismissed, 453 So. 2d 43 (rule applies when the only relief granted is for payment of money).

22 Florida Office of Insurance Regulation, Company Directory, http://www.floir.com/companysearch (search the list of authorized lines of business for sureties).

23 Freedom Insurors, Inc. v. M.D. Moody & Sons, Inc., 869 So. 2d 1283 (Fla. 4th D.C.A. 2004).

24 Mitchell v. State, 911 So. 2d 1211 (Fla. 2005).

25Platt v. Russek, 921 So. 2d 5 (Fla. 2d D.C.A. 2004); see also PS Capital, LLC v. Palm Springs Townhomes, LLC, 9 So. 3d 643 (Fla. 3d D.C.A. 2009) (bond must be in the amount set forth in the rule).

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

How Homeowners in Foreclosure Can Find Legal Help

30 Thursday Oct 2014

Posted by in Federal Court, Foreclosure Defense, Judicial States, Legal Research, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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If you are homeowner in foreclosure faced with a situation that needs legal attention, you basically have Two Options: handle the matter yourself or seek professional legal help.

Representing yourself in a legal proceeding may hold some initial appeal due to the cost of hiring a lawyer or your interest in taking control of the situation.

Before you decide to handle a legal matter yourself, however, you need to evaluate yourself to see whether you can are ready to handle the matter and whether you have access to the resources you will need to succeed.

While our program is designed to assit homeowners in pro se litigations, if you are considering handling the matter yourself, be forewarned that a seemingly simple issue can quickly grow complex if you are not well versed with the legal system. For this simple reason, we are publishing this post to assist homeowners who may not be familiar with the legal system even if they wish to use our program to fight their case. The legal resources contained within our program can also help Attorneys practicing in other areas, help a homeowener fight his/her foreclosure case, saving valuable research time as time is of the essense.

In most situations homeowners will be better off hiring a lawyer, who will assess the merits of your case, explain your options, and help you achieve the best result.

If you decide to seek professional legal help, you can hire a lawyer directly or, depending on your situation, request legal assistance from a nonprofit legal assistance organization such as Legal Aid or the Citizen Media Law Project.

Nonprofit Legal Assistance

Many lawyers and legal organizations provide pro bono work. In common usage pro bono refers to volunteer work done for the public good. In the legal field, lawyers who do pro bono work take cases for those who are disadvantaged and unable to secure legal assistance. Additionally, legal advocacy organizations (organizations that take on cases) usually provide pro bono representation for their clients.

There are a number of nonprofit institutions and other organizations that may be able to represent you or provide other legal assistance. Should the organization offer to represent you in court, you will be in the enviable position of enjoying free legal work done by lawyers passionately committed to the underlying causes of your situation. Note that these lawyers may be working on your individual case because they want to break new legal ground or advance the law in a particular way to benefit society as a whole. Thus, you will want to make your individual goals clear to them. More often than not, they will share your goals and you’ll be able to forge ahead.

THESE ARE THE LIST OF NONPROFIT LEGAL ASSISTANCE ORGANIZATIONS BY STATE

Nonprofit Legal Assistance Organizations in Arizona

The following organizations provide legal assistance to individuals and organizations in Arizona:

Nonprofit Legal Assistance Organizations in California

The following organizations provide legal assistance to individuals and organizations in California:

Nonprofit Legal Assistance Organizations in Florida

The following organizations provide legal assistance to individuals and organizations in Florida:

Nonprofit Legal Assistance Organizations in Georgia

The following organizations provide legal assistance to individuals and organizations in Georgia:

Nonprofit Legal Assistance Organizations in Illinois

The following organizations provide legal assistance to individuals and organizations in Illinois:

Nonprofit Legal Assistance Organizations in Indiana

The following organizations provide legal assistance to individuals and organizations in Indiana:

Nonprofit Legal Assistance Organizations in Massachusetts

The following organizations provide legal assistance to individuals and organizations in Massachusetts:

Nonprofit Legal Assistance Organizations in Michigan

The following organizations provide legal assistance to individuals and organizations in Michigan:

Nonprofit Legal Assistance Organizations in New Jersey

The following organizations provide legal assistance to individuals and organizations in New Jersey:

Nonprofit Legal Assistance Organizations in New York

The following organizations provide legal assistance to individuals and organizations in New York:

Nonprofit Legal Assistance Organizations in North Carolina

The following organizations provide legal assistance to individuals and organizations in North Carolina:

Nonprofit Legal Assistance Organizations in Ohio

The following organizations provide legal assistance to individuals and organizations in Ohio:

Nonprofit Legal Assistance Organizations in Pennsylvania

The following organizations provide legal assistance to individuals and organizations in Pennsylvania:

Nonprofit Legal Assistance Organizations in Texas

The following organizations provide legal assistance to individuals and organizations in Texas:

Nonprofit Legal Assistance Organizations in the District of Columbia

The following organizations provide legal assistance to individuals and organizations in the District of Columbia:

Nonprofit Legal Assistance Organizations in Virginia

The following organizations provide legal assistance to individuals and organizations in Virginia:

Nonprofit Legal Assistance Organizations in Washington

The following organizations provide legal assistance to individuals and organizations in Washington:

OTHER LEGAL ASSISTANCE SERVICE LINKS BY STATE

http://www.ptla.org/legal-services-links

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

How Homeowners Can Effectively Handle Subpoenas Duces Tecum

30 Thursday Oct 2014

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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When homeowners fighting foreclosure are challenged with Foreclosure Mill Attorneys to produce him/herself for deposition or for production of documents via subpoenas, there are few things the homeowner should bear in mind concerning subpoenas.

Responding to Subpoenas

You’ve received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it’s best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena’s request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice. However, this post should be able to answer the preliminary questions you may have about how best to respond.

1. What is a subpoena?

A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer’s office.

Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

  • the judge presiding over the legal proceedings
  • the clerk of the court where the lawsuit has been filed
  • a private lawyer representing one of the parties in the lawsuit
  • a government lawyer such as the Attorney General or District Attorney

(Note that the Attorney General and District Attorney can issue a subpoena during an investigation, before initiating a legal case).

Given that a subpoena is an order to produce yourself and/or tangible items in a very specific legal setting, it is imperative that you take it seriously. Failure to comply with a subpoena can have serious consequences. However, you do have certain options in how best to respond.

2. Did you receive a subpoena?

You’ll first want to determine precisely what you’ve received. Review the documents to see whether it is a subpoena duces tecum, to access material in your possession.

Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you’ve received, if you are not quite familiar with legal documents. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:

  • the full name of a court in the document’s title, or letterhead
  • the word “Subpoena” in bold in the top third of the document
  • the words “you are commanded to report,” or a similar variation
  • your name
  • a specific date, time and location for you to appear or for you to provide the requested materials
  • in some cases, the penalty for non-compliance will be included

Subpoenas are not necessarily filed with the court, so if you have doubts about the document you’ve received, ask a lawyer or call the person who signed the document and ask if they have in fact sent a subpoena. (An address and or telephone number should follow the signature.)

3. Accepting a Subpoena vs. Complying with a Subpoena

Once you’ve determined that you have received a subpoena, you may feel that you want to contest the subpoena because you believe that it is invalid or unreasonable. You can still do so despite having received the subpoena (which in most cases arrived by registered mail, or by a person delivering it to you and requesting your signature). Acceptance of the subpoena does not constitute your assent to comply with it. However, if you object to the terms of the subpoena, then you must inform the court about your decision to challenge it.

4. Inconvenient Date & Cost of Travel

As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.

If appearing at the time and place specified by the subpoena is of great inconvenience, call the person who issued the subpoena, and he may be able to reschedule your appearance to a more convenient date. However, keep in mind that postponement may not be an option because a court date has been set for the trial and cannot be moved. If so, and if you would suffer extreme hardship from having to appear, consult a lawyer who may be able to help.

5. Filing an Objection to a Subpoena

The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.

You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

  • Improper service

The law requires that you receive (were “served”) with the subpoena in a specified way. Requirements for service vary according to jurisdiction, and the subject is too complicated to address in this guide. You may want to consult with an attorney or perform your own legal research to understand whether service was proper. However, this is usually not a strong objection because in all likelihood you will merely be served once again.

  • Scope of Request

If you believe the subpoena you’ve received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. (Note: you should not have to create anything new for a subpoena request; the request should only be for existing material within your possession.)

It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn’t even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.

  • Confidential Material

If the subpoena requires that you turn over confidential documents, or testify about confidential matters, like the identity of an anonymous source, do not immediately comply with the request. The law recognizes the importance of protecting certain communications and grants them a privileged status for purposes of a lawsuit.

For example:

* Certain states have enacted “shield” laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources.

* Both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.

* Both state and federal law grant close relatives immunity from testifying in certain situations.

* Certain provisions are designed to protect homeowners in foreclosure as well.

Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.

In matters involving criminal offenses you’ll need to be aware of:

  • Self-incrimination

The Fifth Amendment of the U.S. Constitution protects an individual from being forced to testify against himself when such testimony could result in criminal liability.

In some cases, law enforcement authorities use a subpoena to a build a case against the subpoena recipient before pressing charges. If you think that you may be the focus of a criminal investigation, or worry about incriminating yourself when you testify, do not comply with the subpoena without first consulting a lawyer.

6. Hiring a Lawyer

If you haven’t already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you’re comfortable with supplying the requested information, you may not need a lawyer’s services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath.

For homeowners without legal knowledge, before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:

  • record events you may later forget
  • evaluate your position and figure out your next steps
  • focus your conversation with a lawyer (should you wish to consult with one)
  • launch your own legal research
  • potentially determine the subpoena’s validity

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