Appeal

ABOUT BUY BANKRUPTCY ADVERSARY PACKAGE BUY FORECLOSURE DEFENSE PACKAGE CONTACT US DONATION FAQ SERVICES
FightForeclosure.net ~ Your ʺPro Seʺ Foreclosure Search… Go
Fight Solution!
♣ FOLLOW BLOG VIA EMAIL

CATEGORY ARCHIVES: APPEAL
Enter your email address to
follow this blog and receive
notifications of new posts by
email.
06 What Borrowers Must Know About

Email Address
Follow
Sunday
OCT 2019
Voiding Liens in a Mortgage
♣ RECENT POSTS
P OSTED BY BNG IN APPEAL, BANKRUPTCY, BANKS AND LENDERS, BORROWER, C ASE ≈ LEAVE A COMMENT
LAWS, C ASE STUDY, FEDERAL COURT, FORECLOSURE, FORECLOSURE CRISIS,
San Fernando Valley Con Man
FORECLOSURE DEFENSE, FRAUD, JUDICIAL STATES, LEGAL RESEARCH, LITIGATION
Pleads Guilty in Multi-Million STRATEGIES, LOAN MODIFICATION, MORTGAGE FRAUD, MORTGAGE LAWS, NON-JUDICIAL
Dollar Real Estate Fraud Scheme STATES, NOTE - DEED OF TRUST - MORTGAGE, P RO SE LITIGATION, REAL ESTATE
that Targeted LIENS, STATE COURT, TRIAL STRATEGIES, YOUR LEGAL RIGHTS
Vulnerable Homeowners
Mortgage Application Fraud!

There are numerous methods for voiding questionable liens in any given
What Homeowners Must Know mortgage. In this post, we’ll discuss an interesting decision by the U.S. Court
About Mortgage Forbearance
of Appeals for the Ninth Circuit in Bankruptcy Adversary Proceeding.
Cosigning A Mortgage Loan:
Tags
What Both Parties Need To Know enforceability of
This decision from the U.S. Court of Appeals for the Ninth Circuit poses a
judgment lien,
What Homeowners Must Know serious threat to mortgage companies that service mortgages of chapter 13
About Filing Bankruptcy Without Foreclosure, foreclosure
debtors. Mortgage servicers should be aware of the case’s implications and
a Lawyer: Chapter 13 Issues defense, homeowners,
involuntary liens, Lien, adjust their internal case monitoring procedures as necessary.
lien stripping, lien
Search… Go voidance, liens, Loan, Consider a common situation. A borrower files a chapter 13 bankruptcy case,
Loan servicing, and her mortgage servicer files a proof of claim for the mortgage balance. The
♣ CATEGORIES Mortgage loan,
borrower then objects to the proof of claim based on some purported
Mortgage modification,
Affirmative Defenses technicality: the signature was forged, the endorsement was improper, the
Mortgage servicer, Pro
Appeal se legal representation
servicer lacks standing to enforce the note, etc. For whatever reason, the
in the United States, mortgage servicer does not respond to this objection, and the claim is
Bankruptcy
Property Lien Disputes, disallowed by default.
Banks and Lenders property liens, Real
Estate Liens, Removing
Borrower When this happens, the borrower will often attempt to leverage a favorable
Liens, Types of Real
settlement, like a mortgage modification, by filing a lawsuit to void the
Case Laws Estate Liens,
mortgage under 11 U.S.C. § 506(d). This provision allows a bankruptcy court to
Unperfected Liens,
Case Study void a lien if the lien secures a claim that is not “allowed.” Because the
voluntary liens
Credit mortgage was “disallowed” by default due to the mortgage servicer’s failure to
respond, this statute theoretically allows the court to void the mortgage
Discovery Strategies
altogether.
Fed
Federal Court Courts generally do not void mortgages that are substantively valid but were
disallowed because of a default. The most common solution in these situations
Foreclosure
is a settlement and a motion to reconsider the disallowance under 11 U.S.C. §
Foreclosure Crisis
502(j). Bankruptcy courts may grant these motions for “cause” at their
Foreclosure Defense discretion, which is typically satisfied if the mortgage servicer can prove the
Fraud substantive validity of the mortgage. See generally In re Oudomsouk, 483 B.R.
502, 513-14 (Bankr. M.D. Tenn. 2012). This works to everyone’s advantage:
Judgment
the mortgage servicer gets paid through the bankruptcy, and the debtor avoids
Judicial States the risk of post-bankruptcy foreclosure if the lien’s validity is ultimately upheld
Landlord and Tenant after the case concludes.
Legal Research
The decision of the U.S. Court of Appeals for the Ninth Circuit in In re
Litigation Strategies
Blendheim may change this result. 2015 WL 5730015 (9th Cir. Oct. 7, 2015).
Loan Modification In Blendheim, the debtors owned a condominium with two mortgages. After
filing chapter 7 and obtaining a discharge of their unsecured debts, the debtors
MERS
immediately filed a chapter 13 case to restructure their mortgages on the
Mortgage fraud
condominium (this process is known as a “chapter 20”). HSBC, the senior
Mortgage Laws servicer, filed a proof of claim for the senior mortgage, but the debtors
Mortgage loan
objected because (a) HSBC attached only the deed of trust, and not the
promissory note, to the proof of claim, and (b) one of the signatures on the
Mortgage mediation
note was purportedly forged.
Mortgage Servicing
Non-Judicial States For reasons unknown, HSBC did not respond to the objection, and the
bankruptcy court entered an order disallowing HSBC’s claim by default. Five
Notary
months later, the debtors brought an adversary proceeding to void the
Note – Deed of Trust – mortgage under 11 U.S.C. § 506(d). Almost eighteen months after the
Mortgage
bankruptcy court disallowed HSBC’s claim, HSBC filed a motion to reconsider the
Pleadings disallowance. HSBC also challenged the debtors’ attempt to void the mortgage
Pro Se Litigation because the disallowance was not actually litigated; it was the result of a
default. The bankruptcy court disagreed, finding that (a) HSBC had no good
Real Estate Liens
reason for failing to respond to the claim objection, and (b) the statute plainly
RESPA
permitted lien avoidance in these circumstances. After the bankruptcy court
Restitution confirmed the debtors’ plan, which provided for payment of only the junior
mortgage, HSBC appealed.
Scam Artists
Securitization
On appeal, HSBC raised three primary issues. First, it argued that Section
State Court 506(d) should not operate to void its mortgage, notwithstanding the plain
Title Companies language of the statute, when the order disallowing the claim was not actually
litigated but was based on a default. Second, it argued that even if the lien
Trial Strategies
were properly voided under Section 506(d), the result could not be permanent
Your Legal Rights because the debtors, having recently received a discharge in their chapter 7
case, were not eligible for a discharge in their chapter 13 case. Third, it argued
♣ ARCHIVES that by losing its lien because of a default order in the bankruptcy case, as
February 2022 opposed to a formal lawsuit, it was denied due process.
March 2021
The court disagreed with HSBC on each issue. First, it held that lien avoidance
February 2021
was appropriate. HSBC cited cases where courts refused to void a mortgage
September 2020 when a claim was disallowed for being filed late. The court distinguished these
cases, holding that a creditor who files a late proof of claim is not “actively
October 2019
participating in the case” and therefore cannot have its state law lien rights
July 2019
impacted. See generally Dewsnup v. Timm, 502 U.S. 410, 418-19. But when a
May 2019 creditor timely files a proof of claim then willfully fails to respond to the
April 2019 debtors’ objection to the claim, the situation is fundamentally different.
According to the court, the Bankruptcy Code plainly allows permanent lien
March 2019
avoidance when a creditor, like HSBC, “just sle[eps] on its rights and refuse[s]
January 2019 to defend its claim.” Blendheim, 2015 WL 5730015, at *11.
September 2018
Next, the court addressed HSBC’s second argument and held that lien
July 2018
avoidance was appropriate even though the debtors were not eligible for a
June 2018
discharge. Acknowledging a split of authority, the court clarified that discharge
May 2018 affects only personal liability, not the in rem rights of creditors, so the cases
on which HSBC relied were distinguishable. Nothing in the Bankruptcy Code
April 2018
prohibits lien avoidance just because a borrower has no right to a discharge.
March 2018
February 2018 Finally, the court held that HSBC’s due process was not offended. HSBC
January 2018
received notice of the claim objection and had ample time to respond. Its
failure to do so, while fatal to its lien, did not violate its due process rights.
December 2017
November 2016 What This Means for Mortgage Creditors
April 2016
The Blendheim case may have serious implications for mortgage creditors. This
March 2016
situation is not an outlier: mortgage servicers commonly fail to respond to claim
January 2016 objections. his may be because of the quick deadline to respond to these
December 2015 objections or the use of separate legal counsel for handling administrative
functions in bankruptcy versus defending adversary proceedings. Historically,
September 2015
when a claim is disallowed based on a creditor’s failure to respond to a claim
October 2014
objection, bankruptcy courts will grant a reconsideration motion under Section
August 2014 502(j) if the creditor can prove the substantive validity of the mortgage.
July 2014
After Blendheim, the result may be different. The Blendheim court, after all, did
June 2014
not seem to care about the underlying validity of HSBC’s claim. Instead, it
May 2014 focused on HSBC’s failure to respond without a good reason.
April 2014
How does this Affect Mortgage Creditors
January 2014
December 2013 Mortgage servicers should be aware of this decision and should make sure that
November 2013 they are closely following the dockets of cases involving their borrowers in
bankruptcy. If they don’t, they risk losing their mortgage lien, if any, altogether.
October 2013
September 2013
CASE STUDY: HSBC v. BLENDHEIM
August 2013
[The views expressed in this document are solely the views of the
July 2013
Author. This document is intended for informational purposes only and is
June 2013
not legal advice or a substitute for consultation with a licensed legal
May 2013 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;
If you are a homeowner already in Chapter 13 Bankruptcy with questionable
liens on your property, you 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.
Homeowners who are not yet in Bankruptcy 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!
SHARE THIS: Twitter Facebook
28
Saturday
What Pro Se Homeowners Must
Know About Appellate Issues and
APR 2018
Record on Appeal
P OSTED BY BNG IN APPEAL, C ASE LAWS, C ASE STUDY, FEDERAL COURT, ≈ LEAVE A COMMENT
FORECLOSURE DEFENSE, JUDICIAL STATES, LITIGATION STRATEGIES, NON-JUDICIAL
STATES, P LEADINGS, P RO SE LITIGATION, STATE COURT, TRIAL STRATEGIES, YOUR
LEGAL RIGHTS
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.
Tags While over 90% of the cases never make it to trial before settlement, if your
Appeal, Appellate court,
case is one of the 10% or less that made it to trial, as a Pro Se litigator, there
Appellate Issues,
are few things to bear in mind.
appellate proceeding,
appellate record,
arguments for appeal, A study conducted few years back shows that About 97 percent of civil cases
closing argument, Jury are settled or dismissed without a trial. The number tried in court fell from
instructions, litigator, 22,451 in 1992 to 11,908 in 2001, according to the study. Plaintiffs won 55
Motion in Limine, percent of the cases and received $4.4 billion in damages.
Objections, post-
judgment, pre-trial, Pro
Homeowners litigating their wrongful foreclosure cases Pro Se are not
Se Litigating, Pro Se
litigator, Pro Se trial
Attorneys by profession, however, this post is designed to help Homeowners
litigators, Record on perfect and win their wrongful foreclosure Appeals.

Appeal, trial, Trial court
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.
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.

defense-package/
Loading...
01
Thursday
What Homeowners Must Know
About Appeal‑able Orders and
MAR 2018
Judgment from the Federal Courts

FORECLOSURE CRISIS, FORECLOSURE DEFENSE, JUDICIAL STATES, LEGAL RESEARCH,
LITIGATION STRATEGIES, NON-JUDICIAL STATES , P RO SE LITIGATION, YOUR LEGAL
RIGHTS
In order to effectively perfect your Appeal case as a Pro Se Litigator,

homeowners must familiarize themselves about Appealing unfavorable decisions.
Tags 1. Appeal-able Orders: Courts of Appeals have jurisdiction conferred and

Appeal-able Orders,
strictly limited by statute:
Foreclosure, foreclosure
defense, homeowners,
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and
Judgment, Orders,
Plaintiff, United States judgments of district courts, or final orders of bankruptcy courts which have
been appealed to and fully resolved by a district court under 28 U.S.C. § 158,
generally are appealable. A final decision is one that “ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.”
Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing
Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911
(1945)).
A magistrate judge’s report and recommendation is not final and appealable

until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b);
Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998).
However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction
over an appeal from a final judgment entered by a magistrate judge, but only if
the parties consented to the magistrate’s jurisdiction. McNab v. J & J Marine,
Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to

fewer than all parties or all claims is not a final, appealable decision unless the
district court has certified the judgment for immediate review under
Fed.R.Civ.P. 54(b).
Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment
which resolves all issues except matters, such as attorneys’ fees and costs,
that are collateral to the merits, is immediately appealable. Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178
(1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir.
1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals

are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions,

or refusing to dissolve or modify injunctions; However, interlocutory
appeals from orders denying temporary restraining orders are not
permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5:

The certification specified in 28 U.S.C. § 1292(b) must be obtained before a
petition for permission to appeal is filed in the Court of Appeals. The district
court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule:

Limited
exceptions are discussed in cases including, but not limited to: Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93
L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine
Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States
Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and
jurisdictional.
Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases,
Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the

requirements set forth in Fed.R.App.P. 3 must be filed in the district court
within 30 days after the order or judgment appealed from is entered. However,
if the United States or an officer or agency thereof is a party, the notice of
appeal must be filed in the district court within 60 days after such entry. THE
NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER
THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided
for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any
other party may file a notice of appeal within 14 days after the date when the
first notice was filed, or within the time otherwise prescribed by this Rule 4(a),
whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district
court under the Federal Rules of Civil Procedure of a type specified in this rule,
the time for appeal for all parties runs from the date of entry of the order
disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances,

the district court may extend or reopen the time to file a notice of appeal.
Under Rule 4(a)(5), the time may be extended if a motion for an extension is
filed within 30 days after expiration of the time otherwise provided to file a
notice of appeal, upon a showing of excusable neglect or good cause. Under
Rule 4(a)(6), the time to file an appeal may be reopened if the district court
finds, upon motion, that the following conditions are satisfied: the moving party
did not receive notice of the entry of the judgment or order within 21 days
after entry; the motion is filed within 180 days after the judgment or order is
entered or within 14 days after the moving party receives notice, whichever is
earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of

appeal in either a civil case or a criminal case, the notice of appeal is timely if
it is deposited in the institution’s internal mail system on or before the last day
for filing. Timely filing may be shown by a declaration in compliance with 28
U.S.C. § 1746 or a notarized statement, either of which must set forth the
date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal

Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c).
A pro Se notice of
appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority,

to act after the filing of a timely notice of appeal, except for actions in aid of
appellate jurisdiction or to rule on a timely motion of the type specified in
Fed.R.App.P. 4(a)(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
https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation

defense-package/
Loading...
24
Wednesday
How Homeowners Can Greatly
Improve their Chances of Winning
JAN 2018
on Appeal
P OSTED BY BNG IN APPEAL, C ASE LAWS, C ASE STUDY, DISCOVERY STRATEGIES, ≈ LEAVE A COMMENT
FEDERAL COURT, FORECLOSURE DEFENSE, JUDICIAL STATES, LITIGATION STRATEGIES,
NON-JUDICIAL STATES, NOTE - DEED OF TRUST - MORTGAGE, P LEADINGS, P RO SE
LITIGATION, SCAM ARTISTS, TITLE COMPANIES, TRIAL STRATEGIES, YOUR LEGAL
RIGHTS
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
Tags understandably focus all of their energies on winning the case at hand. But a
Appeal, Court, District
good litigator knows that trial is often not the last say in the outcome of a
Court, Foreclosure,
case. The final outcome often rests at the appellate level, where a successful
foreclosure defense,
trial outcome can be affirmed, reversed, or something in between. The
homeowners, Plaintiff,
pro se, Pro se legal likelihood of success many times hinges on the substance of the record on
representation in the appeal. The below discusses a variety of issues that trial litigators should keep
United States, State in mind as they prepare and present their case so they position themselves in
Court, United States the best possible way for any appeals that follow.
district court
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;
using foreclosure defense package found at
https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation

defense-package/

Loading...
28
Monday
What Homeowners Should Know
About Appeals at the 9th Circuit
NOV 2016
P OSTED BY BNG IN APPEAL, BANKRUPTCY, FED, FEDERAL COURT, FORECLOSURE ≈ LEAVE A COMMENT
C RISIS, FORECLOSURE DEFENSE, FRAUD, JUDICIAL STATES, LANDLORD AND TENANT,
LITIGATION STRATEGIES, NON-JUDICIAL STATES , P LEADINGS, P RO SE LITIGATION,
TRIAL STRATEGIES, YOUR LEGAL RIGHTS
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;
Tags The Chief Judge is always one of the 11 en banc judges;

9th circuit, 9th circuit
court, Appeal, Law,
The Ninth Circuit currently has 29 active judges and 15 judges on senior
Lawsuit, Pro se legal
status;
representation in the
United States, wrongful
foreclosure appeal 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.
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.

modification or “Pro Se” litigation visit: http://www.fightforeclosure.net
Loading...
08
Friday
How Can Nevada Homeowners
Effectively Handle
APR 2016
Foreclosure Matters
P OSTED BY BNG IN AFFIRMATIVE DEFENSES, APPEAL, FEDERAL COURT, FORECLOSURE ≈ LEAVE A COMMENT
DEFENSE, P RO SE LITIGATION
Why Is It Impportant For Nevada Homeowners to Protect their Homes?
In Nevada, homeowners must be aware of mortgage loans and foreclosure laws

inorder to be few steps aheads of unscrupulous elements that would do
Tags
whatever it takes to snatch away your home right under your nose.
Foreclosure, foreclosure
defense, Mortgage loan,
Nevada, Nevada Why You Need to Know About Nevada Mortgage Loans
Foreclosure, Nevada
When you take out a loan to purchase residential property in Nevada, you
mortgage loans, Pro se
legal representation in
typically sign a promissory note and a deed of trust. A promissory note is
the United States basically an IOU that contains the promise to repay the loan, as well as the
terms for repayment. The deed of trust provides security for the loan that is
evidenced by a promissory note.
How Can you Handle the Issues of Missed Payments
If you miss a payment, most loans include a grace period of ten or fifteen days
after which time the loan servicer will assess a late fee. (Loan servicers collect
and process payments from homeowners, as well as handle loss mitigation
applications and foreclosures for defaulted loans.)
The late fee is generally 5% of the overdue payment of principal and interest
based on the terms of the note. To find out the late charge amount and grace
period for your loan, look at the promissory note that you signed. This
information can also be found on your monthly mortgage statement.
What Are Your Option About Missing Quite a Few Payments
If you miss a few mortgage payments, your mortgage servicer will probably
send a letter or two reminding you to get caught up, as well as call you to try
to collect the payments. Don’t ignore the phone calls and letters. This is a
good opportunity to discuss loss mitigation options and attempt to work out an
agreement (such as a loan modification, forbearance, or payment plan) so you
can avoid foreclosure.
How Can You Handle Pre-Foreclosure Loss Mitigation Review Period
Under the federal Consumer Financial Protection Bureau servicing rules that
went into effect January 10, 2014, the mortgage servicer must wait until you
are 120 days delinquent on payments before making the first official notice or
filing for any nonjudicial or judicial foreclosure. This is to give you sufficient
time to explore loss mitigation opportunities. (If a servicer’s sole purpose of
providing a notice is to inform you that you are late on your payments and/or
explain what your loss mitigation options are, the servicer can deliver the
notice within this pre-foreclosure period.)
What About Deed of Trust, What You Need to Know
Nevada deeds of trust often contain a clause that requires the lender to send
a notice, commonly called a breach letter or demand letter, informing you that
your loan is in default before it can accelerate the loan and proceed with
foreclosure. (The acceleration clause in the mortgage permits the lender to
demand that the entire balance of the loan be repaid if the borrower defaults
on the loan.)
The letter must specify:
the default
the action required to cure the default
a date (usually not less than 30 days from the date the notice is given to
the borrower) by which the default must be cured, and
that failure to cure the default on or before the date specified in the notice
may result in acceleration of the debt and sale of the property.
What Types of Foreclosure Procedures Is there In Nevada
In Nevada, most residential foreclosures are nonjudicial. This means the lender
can foreclose without going to court as long as the deed of trust contains a
power of sale clause.
What is Notice of Default and Election to Sell
In Nevada, Non-judicial proceedings is used to foreclose most home. The

Nevada nonjudicial foreclosure process formally begins when the trustee, a
third-party, records a Notice of Default and Election to Sell (NOD) in the office
of the recorder in the county where the property is located, providing three
months to cure the default.
A copy of the NOD must be sent to each person who has a recorded request
for a copy and each person with an interest or claimed interest in the property
by registered or certified mail within ten days after the NOD is recorded
recordation.
What Are the Requirements for Posting NOD?
If a residential foreclosure, a copy of the NOD must be posted in a conspicuous

place on the property 100 days before the date of sale.
Are there Any Affidavit Required
The trustee or beneficiary (lender) must record a notarized affidavit along with
the NOD that states, based on a review of business records, including all of the
following information.
The full name and business address of the current trustee or the current
trustee’s personal representative or assignee, the current holder of the note
secured by the deed of trust, the current beneficiary of record and the
current servicer of the obligation or debt secured by the deed of trust.
That the beneficiary under the deed of trust, the successor in interest of
the beneficiary or the trustee is in actual or constructive possession of the
note secured by the deed of trust; or that the beneficiary or its successor
in interest or the trustee is entitled to enforce the obligation or debt
secured by the deed of trust.
That the beneficiary or its successor in interest, the servicer of the
obligation or debt secured by the deed of trust or the trustee, or an
attorney representing any of those persons, has sent to the borrower a
written statement including the amount needed to cure the default, the
principal amount of the debt, the accrued interest and late charges, a good
faith estimate of all fees, contact information for obtaining the most current
amounts due, and each assignee of the deed of trust.
What Other Alternatives Do I Have to Stop the Foreclosure?
You have 3 alternatives, sometimes 4.
Your alternatives are:
1). Try to call your alleged lender to see if you can get a reasonable person on
the phone. Don’t panic, just be prepared as over 90% of the people you speak
to on the phone are programmed to act certain way.i.e, if you are lucky as
99.9% you’ll get a recording and will have to leave a message, unfortunately,
you have less that 20% of getting a call back response. You’ll know very early
that the alleged lender, definitely not with your best interest at heart.
2). Nevada law requires that borrowers who are in foreclosure be given the
option to participate in mediation if the property is owner-occupied.
The trustee must mail to the borrower (by registered or certified mail, return
receipt requested) an Election to Mediate Form no later than ten days after
recording the NOD. If the borrower wants to elect mediation, the form must be
completed and returned within 30 days.
3). You can commence litigation to immediately stop the foreclosure, but you
have to be prepared to whether the stop as you’ll experience various emotions
during the litigation proceedings, but with time, you’ll get used to it.
3) Bamkruptcy is another method to stop foreclosure, but it will not be in your
best interest if you just found yourself in foreclosure situation. We recommend
Bankruptcy as the last resort and this is why?
If you are a homeowner with a mortgage payment, say like $1000/mth. If you
have missed payment that is 1 year or more. Your Chapter 13 bankrupcty
payments will be difficult for you to make once in bankrupcty because you will
still make the Normal monthly payment and then some portion of the missed
payments, which is sometimes, nealy half of the monthly payment. So if you
make a payment of $1000 before the foreclosure began, you’ll now have to
make ($1500 (Regular + Potion Payments) to catch up. So you ask yourself, if
you can’t afford the original payment of $1000, before you went into
foreclosure, how can you afford the higher payments.
In Nevada, You Have What is called Danger Notice
At least 60 days prior to the date of the sale, the trustee must provide the
borrower(s) with a separate “Danger Notice” stating that they are in danger of
losing their home to foreclosure, along with a copy of the original promissory
note.
The notice must be:
personally served to the borrower

left with a person of suitable age and discretion (if the borrower is not
available) and a copy mailed, or
if a person of suitable age and discretion is not available, then the notice
may be posted in a conspicuous place on the property, left with a person
residing in the property, and then mailed to the borrower.
What do you need to know about Notice of Sale
After expiration of the three-month period following the recording of the NOD,
the trustee must give notice of the time and place of the sale by recording the
notice of sale and by:
Providing the notice of sale to each required party by personal service or by

mailing the notice by registered or certified mail to the last known address
20 days before sale.
Posting the notice of sale on the property 15 days before the sale.
Posting the notice of sale for 20 days successively in a public place in the
county where the property is situated and on the property 15 days before
sale.
Publishing a copy of the notice of sale three times, once each week for
three consecutive weeks, in a newspaper of general circulation in the
county where the property is situated.
Notice to Tenants
If the property is tenant occupied, a separate notice must be posted in a

conspicuous place on the property and mailed to the tenant no later than three
business days after the notice of sale is given.
Reinstatement Before Sale
In the case of owner-occupied housing, the borrower gets a right to reinstate

by paying the arrearage, costs, and fees. This right expires 5 days prior to the
date of the foreclosure sale.
The Foreclosure Sale
The foreclosure sale must be between the hours of 9:00 a.m. and 5:00 p.m. All
sales of real property must be made:
at the courthouse in the county in which the property or some part thereof
is situated (in counties with a population of less than 100,000), or
at the public location in the county designated by the governing body of the
county for that purpose (in counties with a population of 100,000 or more).
The property will be:
sold to the highest third-party bidder or

revert to the foreclosing lender and become REO
Deficiency Judgment Following Sale
When a lender forecloses on a mortgage, the total debt owed by the borrower
to the lender frequently exceeds the foreclosure sale price. The difference
between the sale price and the total debt is called a “deficiency.” In some
states, the lender can seek a personal judgment against the debtor to recover
the deficiency. Generally, once the lender gets a deficiency judgment, the
lender may collect this amount from the borrower.
In Nevada, a lender may obtain a deficiency judgment following foreclosure, but
the amount of the judgment is limited to the lesser of:
the difference between the total debt and fair market value of the home, or
the difference between the total debt and foreclosure sale price.
For loans taken out after October 1, 2009, deficiencies are prohibited for
purchase money loans (that have not been refinanced) held by a bank or other
financial institution for single-family residences occupied continuously by the
borrowers.
Redemption Period
A redemption period is the legal right of any mortgage borrower in foreclosure

to pay off the total debt, including the principal balance, plus certain additional
costs and interest, in order to reclaim the property. In Nevada, there is no
redemption period following a nonjudicial foreclosure sale.
Eviction Following Foreclosure
If you don’t vacate the property following the foreclosure sale, the new owner
will likely:
offer you a cash-for-keys deal (where the new owner offers you money in
exchange for you agreeing to move out), or
give you a three-day notice to quit (leave) before filing an eviction lawsuit.
To learn more about foreclosure in general, ways to defend against foreclosure,

and programs to help struggling homeowners avoid foreclosure
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.

Loading...
03
Sunday
Why Homeowners Must Time
Correctly Before Appealing
APR 2016
Adverse Decisions
P OSTED BY BNG IN APPEAL, FEDERAL COURT, FORECLOSURE DEFENSE, JUDICIAL ≈ LEAVE A COMMENT
STATES, NON-JUDICIAL STATES , P LEADINGS, P RO SE LITIGATION, STATE COURT, YOUR
LEGAL RIGHTS
CASE STUDY: 989 F.2d 1074
Effective Foreclosure Defense requires timing. If you time correctly, you can
Tags save your home. Homeowners presently in litigation must time correctly when
Appeal, Appealable,
appealling adverse ruling to avoid conflict of Jurisdiction. This case shows
appealable orders,
how wrong timing before filing a Notice of Appeal resulted to Dismissal of
Appealing Adverse
Appeal for Lack of Jurisdiction.
Decisions, Law, Lawsuit,
Pro se legal
representation in the 989 F.2d 1074
United States
25 Fed.R.Serv.3d 62
Don Byron REILLY; Mary Lou Reilly, Plaintiffs-Appellants,

v.
Bruce HUSSEY, Attorney; Robert J. Phillips, Attorney;
Federal Land Bank of Spokane, Defendants-Appellees.
No. 91-35903.
United States Court of Appeals,

Ninth Circuit.
Argued and Submitted Nov. 2, 1992.

Decided March 23, 1993.
Don Byron Reilly and Mary Lou Reilly, pro se.
W. Arthur Graham, Cent. Coast Farm Credit, Arroyo Grande, CA, for defendants-
appellees.
Appeal from the United States District Court for the District of Montana.
Before: WRIGHT, HUG, and POOLE, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
The Reillys appeal pro se the district court’s order dismissing their adversary
complaint. Because their notice of appeal was filed while a motion for rehearing
was pending in the district court, we lack jurisdiction to hear their appeal.
FACTS AND PROCEDURAL HISTORY
2 In February 1977, the Reillys negotiated a loan from the Federal Land Bank of
Spokane and gave as security a deed of trust to a ten-acre tract of land in
Ravalli County, Montana. By February 1986, the Reillys were in default on the
loan, having missed two annual payments, and had failed to pay real property
taxes. The Bank initiated foreclosure proceedings.
3 The Reillys first attempted to avoid foreclosure by filing a Chapter 11 petition
in the U.S. Bankruptcy Court, District of Montana, in January 1986. The court
lifted the automatic stay so that the Bank could continue with pending
foreclosure proceedings in Montana state court. The property was sold at a
nonjudicial foreclosure sale in March 1987. The Reillys’ appeal to the
Bankruptcy Appellate Panel for the Ninth Circuit was dismissed as moot.
4 In February 1987, while that appeal was pending, the Reillys sought to
prevent foreclosure by filing an adversary proceeding in the bankruptcy court.
They sought to void the deed of trust on the ground that the legal description
was erroneous. The court dismissed their complaint, finding the deed valid
under Montana law and not voidable under the Bankruptcy Code. The Reillys
appealed to the U.S. District Court, District of Montana, which dismissed the
appeal with prejudice.
5 In June 1988, on a creditor’s motion, the bankruptcy court converted the
Reillys’ bankruptcy to a Chapter 7 proceeding. The Reillys appealed. Following
the conversion, the bankruptcy court modified its order lifting the automatic
stay to allow the Bank to continue an unlawful detainer action in state court.
That court found the Reillys guilty of unlawful detainer and issued an order of
ejectment. In October 1989, the BAP affirmed the conversion. Five weeks later,
the Montana Supreme Court dismissed the Reillys’ appeal of their ejectment,
finding that the issues raised were based solely on federal bankruptcy law and
had already been decided in the federal proceedings.
6 In May 1989, the Reillys filed a second adversary complaint in the bankruptcy
court, which is the basis of this appeal. The Reillys again complained, among
other things, that the original order lifting the stay was improper. The
bankruptcy court granted the Bank’s motion to dismiss the complaint.
7 The Reillys appealed. In March 1991, they filed an amended brief in which
they argued, apparently for the first time, that because Judge Peterson failed
to disqualify himself at the outset, all decisions of the bankruptcy court should
be set aside.1 On June 4, 1991, the district court affirmed the bankruptcy
court on all issues. First, the court held that the Reillys were barred by res
judicata and collateral estoppel from challenging the order lifting the stay.
Second, they failed to state a claim for relief under the Agricultural Credit Act
of 1987 because the Act confers no private right of action. Third, res judicata
barred their challenge to the validity of the deed of trust. The district court did
not rule on whether Judge Peterson should have been disqualified.
8 Having suffered yet another adverse decision, the Reillys sought a hearing
before us. The fate of their appeal is determined by the timing of their filings
following the district court order. On June 14, 1991, they filed in the district
court a motion to reconsider. On July 3, 1991, while their motion to reconsider
was pending, they filed a notice of appeal. On July 29, 1991, the district court
entered an order denying the motion to reconsider.
JURISDICTION
9 We have jurisdiction to hear appeals from bankruptcy proceedings in which
the district court or bankruptcy panel exercises appellate jurisdiction. 28 U.S.C.
§ 158(d). Such appeals are governed by the Federal Rules of Appellate
Procedure, as amended in 1989. Fed.R.App.P. 6.
10 Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that a
notice of appeal filed before the disposition of a post-trial motion “shall have no
effect.” However, Rule 4(a)(4) does not apply in bankruptcy proceedings in
which the district court or bankruptcy panel exercises appellate jurisdiction.
Fed.R.App.P. 6(b)(1)(i). In contrast, Bankruptcy Rule 8015, which governs
motions for rehearing2 by the district court or the bankruptcy appellate panel,
is silent on the effect of appeals filed before a motion for rehearing is decided.
See Bankr.Rule 8015, 11 U.S.C.A. (West Supp.1992). Rule 6(b)(2)(i) provides
that, if a timely motion for rehearing is filed under Rule 8015, the time for
appeal to the court of appeals runs from the entry of the order denying the
rehearing.
11 The Advisory Committee on Appellate Rules deliberately omitted any
provision regarding the effect of an appeal filed before the entry of an order
denying a rehearing because it wished to “leave undisturbed the current state
of law in that area.” Fed.R.App.P. 6, Advisory Committee Notes, 1989
Amendment, subdivision (b)(2). At the time of the amendment, this circuit had
held that a notice of appeal in a bankruptcy case is null if it was filed while a
motion for rehearing was pending in the district court. In re Stringer, 847 F.2d
549, 550 (9th Cir.1988). That holding is left undisturbed by the 1989
amendment of Fed.R.App.R. 6, and we reaffirm Stringer in this context.
12 In their zeal to pursue all possible avenues of review, the Reillys filed a
notice of appeal while their motion for reconsideration was pending before the
district court. Their notice of appeal was premature and a nullity: “[I]t is as if
no notice of appeal were filed at all. And if no notice of appeal is filed at all,
the Court of Appeals lacks jurisdiction to act.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per
curiam). Because the Reillys failed to file a notice of appeal after the district
court denied their motion for reconsideration, we are without jurisdiction to
hear their appeal.
13 Our holding does not deprive the Reillys of an opportunity to be heard. They
have had their day in court; indeed they have had their days in many different
courts. Clearly, they continue to feel aggrieved; but just as clearly, an
unfavorable decision does not necessarily mean that a court has failed to fairly
consider their arguments.
14 This appeal is dismissed for lack of jurisdiction.
15 DISMISSED.
1Bankruptcy Judge John L. Peterson presided over the chapter 11 proceedings
and both adversary proceedings in the bankruptcy court. In June 1986, in the
original bankruptcy hearing, Judge Peterson advised the parties of his wife’s
minority stock interest in a creditor of the bankruptcy estate. He gave the
parties the option of signing a remittal of disqualification or waiting for another
bankruptcy judge. Both parties voluntarily signed the remittal
Under 28 U.S.C. § 455(e), a judge is not allowed to “accept from the parties to
a proceeding a waiver of any ground for disqualification” based on the financial
interest of the judge’s spouse. The Reillys did not seek review of the
disqualification issue, however, until some five years and numerous proceedings
later. While § 455 contains no explicit timeliness requirement, we have required
that a motion to disqualify or recuse a judge under this section must be made
in a timely fashion. Molina v. Rison, 886 F.2d 1124, 1131 (9th Cir.1989).
Moreover, in August 1990, while the present action was pending in district
court, the Reillys filed a complaint with the Judicial Council of the Ninth Circuit
alleging misconduct by Judge Peterson. We issued an order concluding that “[i]f
the judge’s failure to recuse himself, despite the parties’ remittal, was conduct
prejudicial to the effective and efficient administration of the business of the
courts, appropriate and corrective action has been taken and this complaint
therefore should be closed.” In re Charge of Judicial Misconduct, No. 90-80054,
at 4 (9th Cir. Jan. 11, 1991).
2The Reillys filed a motion for “reconsideration.” The terms “rehearing” and
“reconsideration” are used interchangeably. See In re Shah, 859 F.2d 1463,
1464 (10th Cir.1988); In the Matter of X-Cel, Inc., 823 F.2d 192, 194 (7th
Cir.1987)
Privacy & Cookies: This site uses cookies. By continuing to use this website, you agreeYourself) against the Lender – for Mortgage Fraud and other State and
to their use.
Close and accept
To find out more, including how to control cookies, see here: Cookie Policy Federal law violations using foreclosure defense package found at

Loading...
02
Saturday
What Homeowners Must Know
About Jurisprudential Exceptions to
APR 2016
the Final Judgment

P OSTED BY BNG IN APPEAL, FEDERAL COURT, FORECLOSURE DEFENSE, JUDICIAL ≈ LEAVE A COMMENT
STATES, LITIGATION STRATEGIES, NON-J UDICIAL STATES, P RO SE LITIGATION, STATE
C OURT, TRIAL STRATEGIES, YOUR LEGAL RIGHTS
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.
Tags
Appeal, Appealable,
The primary gatekeeper at the door to the federal courts of appeals is the rule
appealable orders,
that only final judgments are appealable. The final judgment rule has performed
collateral order
this role well, for the most part. In certain cases, however, a trial court’s error
doctrine, non-
appealable, non- on an interlocutory issue is effectively unreviewable on appeal from a final
appealable order, judgment. To deal with this type of injustice, the courts and Congress have
Orders 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).

Loading...
02
Saturday
Effective Use of Injunctions Can
Make or Break Homeowner’s
APR 2016
Foreclosure Case
FORECLOSURE DEFENSE, JUDICIAL STATES, LITIGATION STRATEGIES, NON-JUDICIAL
STATES, P LEADINGS, P RO SE LITIGATION, STATE COURT, YOUR LEGAL RIGHTS
CASE STUDY: 5 F.3d 539 Unpublished Disposition
Tags save your home. Homeowners presently in litigation must use injunctions to
automatic stay,
their advantage. Ignorance will not be to your advantage.
injunction, injunctive,
motion, relief, stay, stay
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions
pending appeal
or orders designated for publication are not precedential and should not be
cited except when relevant under the doctrines of law of the case, res
judicata, or collateral estoppel.
In re Evalyn PREBLICH, Debtor.
Evalyn PREBLICH, Appellant,
v.
Kenneth W. BATTLEY; Dennis Sammut, Appellees.
No. 92-36540.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 11, 1993.*

Decided Aug. 24, 1993.
Appeal from the United States District Court for the District of Alaska; No. CV-
91-419-HRH, H. Russel Holland, Chief District Judge, Presiding.
D. Alaska
AFFIRMED.
Before PREGERSON, BRUNETTI and RYMER, Circuit Judges.
MEMORANDUM**
Chapter 7 debtor Evalyn Preblich appeals pro se from the district court’s
affirmance of a bankruptcy court order authorizing the sale of certain
bankruptcy estate property near Hope, Alaska to appellee Dennis Sammut by
appellee-trustee Kenneth W. Battley. The district court held that because
Preblich had failed to obtain a stay pending appeal, her challenge to the sale
was moot under 11 U.S.C. Sec. 363(m). Preblich also petitions this court to
stay the present appeal pending resolution by the Ninth Circuit Bankruptcy
Appellate Panel of an allegedly related matter arising from the same
bankruptcy. Sammut, meanwhile, moves this court to strike Preblich’s Reply
Brief.
We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm the order of the
district court, and deny the motions of both parties.
I. MOOTNESS
The district court ruled that Preblich’s challenge to the bankruptcy court’s
authorization of the sale of the subject property was moot under 11 U.S.C.
Sec. 363(m) because she had failed to obtain a stay pending appeal. Preblich
does not dispute the fact that she did not obtain a stay, but instead offers
reasons why this situation should be excepted from the stay requirement. After
careful consideration of these arguments, we conclude that all of them lack
merit.
Section 363(m) provides that an appeal from the bankruptcy court’s

authorization of the sale of certain property cannot affect the rights of a good
faith purchaser, unless the debtor stays the sale pending an appeal.1 We have
applied this statute strictly, and have recognized only two situations in which
failure to obtain a stay will not render an appeal moot: “(1) where real property
is sold to a creditor subject to the right of redemption and (2) where state law
would otherwise permit the transaction to be set aside.” In re Mann, 907 F.2d
923, 926 (9th Cir.1990) (internal citations omitted). We have done so in the
interest of promoting finality in bankruptcy. See In re Onouli-Kona Land Co.,
846 F.2d 1170, 1172 (9th Cir.1988).
Preblich argues that her appeal of the sale authorization order is not moot
because she holds a statutory right of redemption in the subject property
which would authorize the setting aside of the sale under state law. Preblich
fails, however, to explain either the factual or statutory basis of this claim.
Indeed, she cites no Alaska law whatsoever for the proposition that the
trustee’s sale of the property in this case may be set aside for any reason. Our
own research, reveals that Alaska statutes do recognize a right of redemption,
but only where property is sold to satisfy a judgment or other lien. See Alaska
Stat. Secs. 09.35.250 (redemption by judgment debtor or successor),
09.45.190 (redemption after foreclosure of lien) (1983). The sale at issue here
falls into neither of these categories; it was an ordinary sale of estate assets
for the purposes of bankruptcy liquidation.
Preblich also argues that section 363(m) is not applicable to her appeal
because Sammut did not purchase the property in “good faith” within the
meaning of the statute. Specifically, Preblich contends that the sale price was
not adequate, that the auction was not adequately advertised, and that the
trustee agreed to pay for unnecessarily expensive environmental cleanup
measures. We have defined a lack of good faith under this statute to
constitute “fraud, collusion … or an attempt to take grossly unfair advantage of
other bidders.” Onouli-Kona Land Co., 846 F.2d at 1173.
After reviewing Preblich’s contentions, we conclude that none are sufficient to
establish a lack of good faith on the part of Sammut. First of all, we have
explicitly held that good faith does not depend on the value paid for the
subject property. Id. at 1174. Preblich’s contentions that Sammut did not pay a
sufficiently high purchase price are therefore unavailing. Second, the fact that
advertisement of the property was not as extensive as Preblich wished, does
not render the sale fraudulent, collusive or unfair. According to the district
court, the property was advertised in the Hope-Sunrise area, and was
ultimately sold at an auction in which Sammut and one other individual bid
against each other. Under these circumstances, we are unable to conclude
that the sale lacked good faith. Third, the fact that the trustee may have paid
more than necessary for environmental cleanup in connection with the sale is
entirely irrelevant to Sammut’s good faith. Although these expenditures may
have effectively lowered the purchase price, the inadequacy of that price will
not establish that Sammut lacked good faith.
Finally, Preblich argues that her appeal should not be adjudicated moot under
section 363(m), because the trustee unlawfully exercised control over the
subject property. According to Preblich, the trustee recovered the property
from Preblich’s husband and son as a fraudulent conveyance, under a judgment
of the bankruptcy court. Preblich contends, however, that the fraudulent
conveyance judgment was in error and that the trustee did not have a right to
sell the property to Sammut.
However true Preblich’s contentions may be, the fraudulent conveyance issue
was the subject of a separate bankruptcy court order which was separately
appealable and is not presently before this court. Moreover, a finding that the
trustee had improperly recovered the subject property for the bankruptcy
estate would not overcome section 363(m). In the absence of a stay, section
363(m) renders moot any action which might affect the rights of a good faith
purchaser. Although we have recognized narrow exceptions to this rule, see In
re Mann, 907 F.2d at 926, an erroneous fraudulent conveyance holding on the
part of the bankruptcy court would satisfy none of them.
II. MOTION TO STAY THE APPEAL
Subsequent to filing the present appeal, Preblich petitioned this court to stay
this proceeding pending the resolution of another matter which is pending
before the Ninth Circuit Bankruptcy Appellate Panel, BAP No. 92-1861. Preblich
contends that “[i]f this case should be decided favorably for the appellant, the
Ninth Circuit case would become moot. If it is decided unfavorably, then it will
be [appealed] and consolidated with the current appeal so there will be just
one appeal.” Preblich, however, gives no description of the issues involved in
the BAP case or any explanation of why a favorable BAP decision would render
the present appeal moot. For this reason we are not persuaded that staying
the present appeal is necessary and accordingly deny Preblich’s motion.2
III. MOTION TO STRIKE
Sammut has moved to strike the Preblich’s Reply Brief on the ground that it
raises matters not within the scope of her opening brief and introduces
evidence which is not a part of the record. Because we reach the merits of
Preblich’s appeal and reject it, we deny Sammut’s motion as moot.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s affirmance of the
bankruptcy court’s order authorizing the sale of the subject property, deny
Preblich’s motion to stay the present appeal and deny Sammut’s motion to
strike Preblich’s Reply Brief.
AFFIRMED.
*The panel unanimously finds this case suitable for decision without oral
argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
* *This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as provided by 9th Cir.R. 36-3
1 The statute explicitly provides that:
The reversal or modification on appeal of an authorization under subsection (b)
or (c) of this section of a sale or lease of property does not affect the validity
of a sale or lease under such authorization to an entity that purchased or
leased such property in good faith, whether or not such entity knew of the
pendency of the appeal, unless such authorization and such sale or lease were
stayed pending appeal.
11 U.S.C. Sec. 363(m).
2 Sammut suggests that the BAP case referred to by Preblich involves an

attempt to reopen the adversary proceeding in which the bankruptcy court
held that Preblich’s conveyance of the subject property to her husband and
son was fraudulent. As we explained above, however, a finding that the
conveyance was not fraudulent would not overcome the strict requirement in
section 363(m) that a stay be obtained if an appellate court is to provide any
relief affecting the rights of a good faith purchaser
Loading...
01
Friday
Why Homeowners Must Effectively
Use Court Injunctions To Save
APR 2016
Their Homes
P OSTED BY BNG IN APPEAL, BANKRUPTCY, C ASE LAWS, C ASE STUDY, FEDERAL ≈ LEAVE A COMMENT
C OURT, FORECLOSURE DEFENSE, JUDICIAL STATES, LITIGATION STRATEGIES, NON-
JUDICIAL STATES, P RO SE LITIGATION, YOUR LEGAL RIGHTS
CASE STUDY: 893 F.2d 1338 Unpublished Disposition
Tags save your home. Homeowners presently in litigation must use injunctions to
automatic stay,
their advantage. Ignorance will not be to your advantage.
injunction, injunctive
relief, motion, stay, stay
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions
pending appeal
or orders designated for publication are not precedential and should not be
cited except when relevant under the doctrines of law of the case, res
judicata, or collateral estoppel.
In re James MILLER, Jr. and Pamala F. Miller,

James MILLER, Jr. and Pamala F. Miller, Appellants,
v.
LINCOLN TITLE COMPANY, Appellee.
No. 88-5687.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 30, 1989.

Decided Jan. 12, 1990.
Before WILLIAM A. NORRIS, REINHARDT and TROTT, Circuit Judges.
I. MEMORANDUM*
1 The Millers (“Debtors”) seek reversal of an order of the Bankruptcy Appellate

Panel (“BAP”) denying the Debtors’ Ex Parte Motion for Order Setting Aside
Default Order and dismissing as moot the Debtors’ appeal of the dismissal of
their Chapter 11 petition. The Debtors base their appeal on two arguments: (1)
the BAP erred in denying the Debtors’ Rule 60(b) motion to set aside the
default judgment; and (2) the BAP erred in dismissing the Debtors’ appeal of
the bankruptcy court’s order dismissing their Chapter 11 case on the grounds of
mootness. We affirm the BAP’s order dismissing the Debtors’ appeal insofar as it
relates to the automatic stay and the sale of the property, due to the
mootness of that issue, and we remand to the BAP the issues of timeliness of
the Debtors’ appeal to the BAP and whether dismissal of the Debtors’ Chapter
11 petition for lack of prosecution of their earlier Chapter 13 petition was
proper.
II. STATEMENT OF FACTS
2 The Debtors filed a Chapter 11 petition on June 12, 1986. On March 9, 1987,
the U.S. Trustee filed a motion to dismiss the Chapter 11 case or, alternatively,
to convert it to a Chapter 7 case. On March 31, 1987, Lincoln Title Company
(“Lincoln”) filed a motion to join in the motion to dismiss and its own motion for
dismissal. Lincoln based its motion to dismiss on the Debtors’ previous Chapter
13 case that was dismissed for failure to prosecute.1 Lincoln asked the court
to take judicial notice of the fact that the Chapter 13 was dismissed pursuant
to section 109(g)(1) of the Bankruptcy Code.2 On May 12, 1987, the
bankruptcy court dismissed the Debtors’ Chapter 11 case based on the
Debtors’ ineligibility to file the Chapter 11 case under section 109(g)(1). The
order of dismissal was entered on May 15, 1987, and the Debtors filed their
notice of appeal to the BAP on May 28, 1987, two days after the ten-day
deadline prescribed by Bankruptcy Rule 8002. The respondent objected on the
ground that the appeal was untimely and the BAP filed a conditional order of
dismissal on July 22, 1987, inviting the Debtors to file a written explanation
showing legal cause why the appeal should not be dismissed. On July 23, 1987,
the Debtors filed a motion in opposition to the respondent’s objection. On
September 9, 1987, the BAP issued an order denying the motion to dismiss. The
order did not specify the BAP’s reasons for denial.
3 While the Chapter 11 case was pending, Creditway of America (“Creditway”)
filed a motion for relief from the automatic stay. On September 17, 1986, the
bankruptcy court entered an order modifying the automatic stay. This order
denied Creditway’s motion to lift the stay subject to the following conditions to
be performed by the Debtors: (1) Submission of proof of insurance on the
subject property; (2) filing of schedules and statements by August 27, 1986;
and (3) filing of a plan and disclosure statement on or before September 29,
1986. The order also stated that if the Debtors failed to perform any of these
conditions, Creditway could file a declaration of default or order for relief from
stay.
4 The Debtors complied with the first two requirements, but did not file a plan
and disclosure statement by the prescribed deadline. However, the Debtors
delivered a request for an extension of time to the trustee on September 26,
1986. The Trustee filed the request on September 30, 1986. On October 9,
1986, Creditway filed a document styled, “Declaration of Jeffrey A. Paris and
Order Terminating Automatic Stay,” based on the Debtors’ noncompliance with
the order to file a plan and disclosure statement by September 29. The Debtors
claim to have received this declaration/order on October 20, 1986. On October
24, 1986, the court granted the Debtors’ request for an extension of time to
file the plan and disclosure statement until October 27, 1986. On November 24,
1986, Judge Fenning signed Creditway’s proposed order terminating the
automatic stay, and on December 16, 1986, entered a default order terminating
the stay. The Debtors allege that neither the court nor Creditway provided
them with a copy of any signed order. The Debtors did not appeal the
November or December order.
5 On January 7, 1987, Creditway conducted a Trustee’s Sale of the property.
The property was purchased by an independent third party. The Debtors then
filed numerous papers in the state courts as well as the bankruptcy court
seeking to set aside the sale. All actions were unsuccessful. In the meantime,
the municipal court granted a Writ of Execution, Money Judgment for and Writ
of Possession of Real Property on the foreclosed property.
6 On July 27, 1987, the bankruptcy court declined to hear the Debtors’
Complaint to Invalidate Sale of Real Property filed June 1, 1987, due to lack of
subject matter jurisdiction since the bankruptcy case had been dismissed. The
Debtors then filed with the BAP, on December 2, 1987, an ex parte motion to
set aside the default order under Rule 60(b). The BAP denied the Debtors’
motion and dismissed their appeal as moot on January 11, 1988. The panel
clarified this order at the request of the Debtors on March 11, 1988, and
explained that because the order lifting the automatic stay was never appealed
and the property was subsequently sold, the appeal was rendered moot.
Debtors then filed a notice of appeal to the Ninth Circuit on February 10, 1988.
III. ANALYSIS
7 The court of appeals reviews a decision of the BAP de novo. Both the court
of appeals and the BAP apply the same standard of review to the bankruptcy
court judgment, reviewing findings of fact under the clearly erroneous standard
and questions of law de novo. See In re Burley, 738 F.2d 981 (9th Cir.1984).
i. The Automatic Stay.
8 We affirm the order of the BAP denying the Debtors’ Rule 60(b) motion and
dismissing their appeal insofar as it affects the automatic stay. The issue of
the automatic stay and the sale of the Debtors’ residence has been rendered
moot by the sale of the property to an independent third party.
9 This circuit has held that where a stay pending appeal is not requested or is
not granted, a party risks losing its ability to realize the benefit of a successful
appeal. See In re Combined Metals Reduction Co., 557 F.2d 179 (9th Cir.1977);
In re Sun Valley Ranches, Inc., 823 F.2d 1373, 1374 (9th Cir.1987) (“We have
generally held that where an automatic stay is lifted, the debtor’s failure to
obtain a stay pending appeal renders an appeal moot after assets in which the
creditor had an interest are sold.”). Where the property has been sold to an
independent third party, this circuit has held that the appeal is moot, because
the court cannot grant effective relief, at least in the absence of the third
party. See In re Royal Properties, Inc., 621 F.2d 984, 987 (9th Cir.1980) (“Once
the orders have been performed, an appeal attacking the order is moot. Nor
may the appellants attack the validity of the sale or the deed in this appeal.
The purchasers of the property have not been made parties to the appeal, and
we cannot grant effective relief in their absence.”).
10 In the instant case, the default order was not appealed and a stay was not
requested. The Debtors claim that they did not appeal because they were not
served with the signed default order within the time period for appeal.
Nonetheless, because the subject property was sold to an independent third
party pursuant to a bankruptcy court order, we cannot grant effective relief in
a proceeding to which the purchaser is not a party. Thus, we affirm the BAP’s
denial of the Debtors’ Rule 60(b) motion and its order dismissing the Debtors’
appeal insofar as it affects the automatic stay.
ii. Dismissal of the Debtors’ Chapter 11 Petition
A. Extent of Property Involved
11 The BAP dismissed the Debtors’ appeal of the order dismissing their Chapter
11 case based on the sale of the Debtors’ residence rendering the appeal moot.
However, it appears that the BAP mistakenly believed that the only property
involved in the Debtors’ Chapter 11 case was the Debtors’ residence. Because
other property appears to be involved, we reverse the BAP’s dismissal. On
remand, the BAP should determine whether the Chapter 11 case involved other
property.
B. Dismissal Under 11 U.S.C. Sec. 109(g)(1).
12 The bankruptcy court dismissed the Debtors’ Chapter 11 petition under

section 109(g)(1). This section bars an individual who was a debtor in a
previous Title 11 case pending in the preceding 180 days from being a debtor
under Title 11 if the previous case was dismissed “for willful failure to abide by
orders of the court, or to appear before the court in proper prosecution.” The
Debtors’ earlier Chapter 13 case was dismissed for “failure to prosecute” and
their subsequent Chapter 11 petition was filed within 180 days of that
dismissal. The appellees argue that the dismissal for lack of prosecution of the
Chapter 13 proceeding acts as a bar to the Debtors’ Chapter 11 filing. The
appellants vigorously disagree, arguing that the Chapter 13 dismissal was not
based on a willful failure to prosecute and that since section 109(g)(1) requires
the element of willfulness, they are not barred from filing the Chapter 11
petition. The BAP did not consider this issue because it dismissed the appeal as
moot. Thus, on remand if the BAP concludes that the appeal is timely (see
section C infra ) and that property other than the house is involved, it should
also consider the issue of whether the dismissal of the Debtors’ Chapter 13
case for failure to prosecute served to trigger the 180-day filing bar of section
109(g)(1).
C. Timeliness of the Appeal to the BAP.
13 The untimely filing of a notice of appeal is jurisdictional. In re Nucorp

Energy, Inc., 812 F.2d 582 (9th Cir.1987). However, Bankruptcy Rule 8002
avoids potential hardship by allowing deadline extensions. If a party does not
file the notice of appeal or an extension within the ten-day filing period, he
may still receive an extension upon request within twenty days of the deadline
if he can show “excusable neglect.” 11 U.S.C. Sec. 8002(c). The Debtors did
not actually request an extension of time to file the appeal before the BAP and
the BAP order did not indicate whether or not the Debtors had shown
excusable neglect. Thus, on remand the BAP should reconsider the issue of the
timeliness of the Debtors’ appeal or provide an explanation of the basis for its
earlier determination.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings

consistent with this disposition.
*
This disposition is not appropriate for publication and may not be cited to or by
the courts of this circuit except as provided by 9th Cir.R. 36-3
1 The Millers filed a Chapter 13 petition on November 7, 1985. On November
13, 1985, the court filed an order for the Millers to file a plan and statement,
and an order to show cause why the case should not be dismissed. On
December 2, 1985, a show cause hearing was held and the court dismissed the
Chapter 13 petition for “failure to prosecute.” The Millers did not attend this
hearing
2 Section 109(1)(g) states that an individual may not be a debtor under Title
11 if he has been a debtor in a Title 11 case pending at any time in the
preceding 180 days if “the case was dismissed by the court for willful failure of
the debtor to abide by orders of the court, or to appear before the court in
proper prosecution.” 11 U.S.C. Sec. 109(g)(1)

Loading...
← Older posts
RECENT POSTS
San Fernando Valley Con Man Pleads Guilty in Multi-Million Dollar Real Estate Fraud Scheme that Targeted Vulnerable Homeowners
Mortgage Application Fraud!
What Homeowners Must Know About Mortgage Forbearance
Cosigning A Mortgage Loan: What Both Parties Need To Know
What Homeowners Must Know About Filing Bankruptcy Without a Lawyer: Chapter 13 Issues
TAGS FIGHT-FORECLOSURE.COM PAGES
5th circuit court 9th circuit 9th About

circuit court 10 years Adam
RSS Levitin adding co-borrower Buy Bankruptcy
Adversary Package
Adjustable-rate
RSS - Posts Buy Foreclosure
mortgage adjustable Defense Package
RSS - Comments rate mortgage loan Contact Us
administrative office of the
Donation
adversary
courts
FAQ
proceeding affidavits
Affirmative defense after Services
foreclosure Alabama Annual
percentage rate Appeal ARCHIVES
Appeal-able Orders
Appealable appealable February 2022
orders Appealing Adverse March 2021
Decisions Appellate court February 2021
Appellate Issues appellate
proceeding appellate record September 2020
applying for a mortgage October 2019
Appraiser Areas of Liability
arguments for appeal Arizona July 2019
Article 9 of the Japanese May 2019
Constitution Asset Asset
Rental Assignment (law) April 2019
Attorney Fees Attorney March 2019
general August Aurora Loan
January 2019
Services of Nebraska
September 2018
automatic stay
July 2018
avoid foreclosure
Avoid Mistakes During June 2018
Bankruptcy Avoid Mistakes in May 2018
Bankruptcy bad credit score
April 2018
bank bank forecloses
March 2018
Bank of America February 2018
Bank of New York Bankrupcty
January 2018
Bankruptcy December 2017
bankruptcy adversary
November 2016
proceeding bankruptcy
appeal Bankruptcy Appeals April 2016
Bankruptcy Attorney March 2016
bankruptcy code
January 2016
bankruptcy December 2015
court Bankruptcy Filing September 2015

Fees bankruptcy mistakes October 2014
bankruptcy on credit report August 2014
bankruptcy process
Bankruptcy Trustee Banks July 2014
Banks and Lenders Bank June 2014
statement Barack Obama
May 2014
Berkshire Hathaway Bill Blank
April 2014
endorsement Borrower January 2014
borrower loan borrowers December 2013
Borrowers in Bankruptcy
Boston Broward County November 2013
Broward County Florida October 2013
Builder Bailout
September 2013
Business Buy and Bail August 2013
Buyer Buyers buying a house
buying foreclosed homes July 2013
California California June 2013

Court of Appeal California May 2013
foreclosure California
Residents Case in Review
Case Trustees Center for
Housing Policy CFPB’s
Response chapter 7
chapter 7 bankruptcy
chapter 11 chapter 11
bankruptcy Chapter 11
Plans chapter 13 chapter
13 bankruptcy Chinese
style name Chunking circuit
court Citi civil judgments Civil
procedure Clerk (municipal
official) Closed End Credit
Closing/Settlement Agent
closing argument collateral
order doctrine collection
Collier County Florida
Colorado Complaint
Computer program Consent
decrees Consequences of
a Foreclosure Consumer
Actions Consumer Credit
Protection Act Content
Contractual Liability Conway
Cosigning A Mortgage Loan
Counsels Court Court
clerk courts Courts of Nevada
Courts of New York Credit
credit bureaus Credit
Counseling and Financial
Management Courses credit
dispute letter credit disputes
Credit history Creditor credit
repair credit repair
company credit report
credit reports Credit Score
current balance Debt Debt-to-
Deed
income ratio debtor
in lieu of
foreclosure Deed of
Trust Deeds of Trust
defaulting on a mortgage
Default judgment Defendant
Deficiency judgment
deficiency judgments
delinquency delinquency
reports Deposition (law)
Detroit Free Press Deutsche
Bank Dingwall Directed
Verdict Discovery dispute
letter District Court district
court judges dormant
judgment Double Selling Due
process Encumbered
enforceability of
judgment lien enforceability
of judgments entry of
judgment Equifax Equity
Skimming Eric Schneiderman
Escrow Evans Eviction
execution method execution
on a judgment Experian
Expert witness
extinguishment Fair Credit
Reporting Act (FCRA) Fake
Down Payment False notary
signatures Fannie Mae
Fannie Mae/Freddie Mac
federal bankruptcy laws
Federal Bureau of
Federal
Investigation
Court federal courts
Federal government of the
United States Federal Home
Loan Bank Board Federal
Housing Administration
Federal Judgments Federal
Rules of Civil Procedure
federal statute Federal tax
FHA FICO Fictitious Loan Filing
(legal) filing for bankruptcy
Finance Finance charge
Financial institution
Financial reports Financial
Services Financial statement
Florida Florida
Homeowners Florida Supreme
Court Fonts Forbearance
foreclose foreclosed
homes foreclosing on
home
Foreclosure
foreclosure auction
Foreclosure Crisis
foreclosure
defense foreclosure
defense strategy
Foreclosure in California
foreclosure in Florida
Foreclosure laws in California
Foreclosure Pending Appeal
foreclosure process
Foreclosure Rescue Fraud
foreclosures foreclosure
suit Forms Fraud fraud
prevention Fraudulent
Appraisal Fraudulent
Documentation Fraudulent
Use of Shell Company
Freddie Mac fresh
financial start Glaski good
credit good credit score Good
faith estimate Governmental
Liability HAMP HAP
hardship home Home
Affordable Modification
Program home buyer
Home insurance
homeowner
homeowners
home ownership Homes
Horace housing counselor
How Many Bankruptcies Can
a Homeowner File How Much
Debt Do I Need To File
Bankruptcy HSBC Bank USA
Ibanez Ibanez Case
Identify Theft injunction
injunctive injunctive relief
installment judgments
Internal Revenue Service
Interrogatories Investing
involuntary liens IOU
issuance of the remittitur
items on credit report J.P.
Morgan Chase Jack Conway
Jack McConnell joint
borrowers JPMorgan Chase
JPMorgan Chase Bank Juarez
Judgment judgment
creditors judgment expired
Judgments after Foreclosure
judicial
Judicial
foreclosures Judicial
States July Jury
instructions Justice
Department Kentucky
Kristina Pickering Landlord
Language Las Vegas late
payment Late Payments
Law Lawsuit
lawsuits Lawyer Lawyers and
Law Firms Lease Leasehold
estate Legal Aid Legal Aid
by State Legal Assistance
Legal burden of proof Legal
case Legal Help Legal
Information lender lenders
Lenders and Vendors lending
and servicing liability Lien
liens lien stripping lien
voidance lifting automatic
stay Linguistics Lis pendens
List of Latin phrases litigator
load modification Loan

Loan Modification Loan
Modification and Refinance
Fraud loan modification
specialists Loan origination
Loan
loans Loan Servicer
servicing Los Angeles

loses Making Home
Affordable
Massachusetts
Massachusetts Supreme
Judicial Court Mastropaolo
MBA Letter MBIA McConnell
Means Test Forms Mediation
mediation program Medical
malpractice MER MERS
Michigan Monetary Awards
Monetary Restitution
money Montana
mortgage
Mortgage-backed
security Mortgage
Application Fraud Mortgage
broker mortgage company
Mortgage Coupon
Mortgage
Electronic
Registration
System
Mortgage fraud
Mortgage law
mortgage lender
Mortgage
loan mortgage loan
modification mortgage
loan modifications
mortgage loans
Mortgage mediation
Mortgage
modification
Mortgage note
Mortgage
mortgages
servicer Mortgage
Servicing Fraud motion
Motion (legal) Motion in
Limine Motions National
Center for State Courts
National City Bank National
Mortgage Settlement Natural
Negotiable instrument Nelva
Gonzales Ramos Nevada
Nevada Bell Nevada
Foreclosure Nevada mortgage
loans Nevada Supreme
Court New Jersey New
Mexico New York New
York Stock Exchange New
York Times Ninth Circuit non-
appealable non-appealable
order Non-judicial non-
judicial foreclosure non-
judicial foreclosures Non-
judicial Foreclosure States
Non-Judicial States non-
recourse nonjudicial
foreclosures North Carolina
note Notice Notice of
default notice of entry of
judgment Nueces County
Nueces County Texas
Objections Official B122C-2
Official Form B122C-1 Ohio
Options Oral argument in the
United States Orders
Originator overture a
foreclosure sale Owner-
occupier Payment Percentage
Perfected periodic payments
personal loans Phantom Sale
Plaintiff Plan for

Bankruptcy Pleading post-
judgment pre-trial Pro Bono
Process for a Foreclosure
Processor Process Service
Produce the Note
Promissory note
pro per Property Property
Flip Fraud Property Lien
Disputes property liens
Pro se
pro se
legal
representatio
n in the
United
States Pro Se
Litigating Pro Se litigator Pro
Se trial litigators Protecting
Tenant at Foreclosure Act
Protecting Tenants PSA PTFA
public records purchase a
Real
new home Quiet title
estate Real Estate

Agent Real Estate Liens
Real Estate
Settlement
Procedures Act Real
property RealtyTrac
Record on Appeal refinance a
loan Refinance Fraud
Refinancing registered
judgment Regulatory (CFPB)
relief remittance reports
remove bankruptcy remove
bankruptcy on credit report
Remove Late Payments
Removing Liens renewal of
judgment renewing a
judgment Reno Reno Air
Request for admissions
Rescission Residential
mortgage-backed security
Residential Mortgage Lending
Market RESPA Restitution
Reverse Mortgage Fraud
Rhode Island robert estes
Robert Gaston Robo-signing
Sacramento Scam Artists
Scope Secondary Mortgage
Market
Securitization
securitized Security interest
Se Legal Representation Self-
Help Seller servicer servicer
reports Services servicing
audit setting aside foreclosure
sale Settlement (litigation)
short sale Short Sale Fraud
Social Sciences Social
Security South Dakota
Special agent standing state
State Court State Courts
state law Statute of
Limitations statute of
limitations for judgment
renewals statute of repose
stay Stay of Proceedings
stay pending appeal
Straw/Nominee Borrower
Subpoena Duces Tecum
Summary judgment Supreme
Court of United States Tax
lien tenant in common
Tenants After Foreclosure
Tenants Without a Lease
Tennessee Texas The Dodd
Frank Act and CFPB The TRID
Rule Thomas Glaski TILA
time-barred judgment Times
New Roman Times Roman
Timing Title 12 of the United
States Code Title Agent
Tolerance and Redisclosure
Transferring Property
TransUnion trial Trial court
TRO true owners of the note
Trust deed (real
estate) Trustee Truth in
Lending Act Tuesday
Typeface Types of Real
Estate Liens U.S.
Bancorp U.S. Securities
and Exchange Commission
UCC Underwriter
Uniform
Commercial Code
United States
United States Attorney United
States Code United States
Congress United States Court
of Appeals for the First Circuit
United States Department of
Housing and Urban
Development United States
Department of Justice
United States district
court United States District
Court for the Eastern District
of California United States
federal courts United States
federal judge Unperfected
Liens US Bank US
Securities and Exchange
Commission valuation
voluntary liens Wall Street
Warehouse Lender
Warehouseman Washington
Wells
Washington Mutual
Fargo Wells Fargo Bank

withdrawal of reference write
wrongful
of execution
foreclosure wrongful
foreclosure appeal
Wrongful Mortgage
Foreclosure Yield spread
premium
Privacy & Cookies: This site uses cookies. By continuing to use this website, you agree to their use.
To find out more, including how to control cookies, see here: Cookie Policy
Close and accept
Website Powered by WordPress.com.

Appeal

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Appeal

Uploaded by

Copyright:

Available Formats

ABOUT BUY BANKRUPTCY ADVERSARY PACKAGE BUY FORECLOSURE DEFENSE PACKAGE CONTACT US DONATION FAQ SERVICES

FightForeclosure.net ~ Your ʺPro Seʺ Foreclosure Search… Go

♣ FOLLOW BLOG VIA EMAIL

06 What Borrowers Must Know About

Mortgage Application Fraud!

November 2016 What This Means for Mortgage Creditors

Homeowners who are not yet in Bankruptcy should wake up

If you find yourself in an unfortunate situation of losing or about to lose your

SHARE THIS: Twitter Facebook

litigators, Record on perfect and win their wrongful foreclosure Appeals.

Your case on appeal can be greatly improved by focusing on potential

Perhaps one of the biggest misconceptions regarding preserving an adequate

Of particular importance in federal court practice is the pre-trial order. Under

What to Keep in Mind as Your Case Proceeds

Otherwise, there will be an insufficient record on appeal. This is particularly so

After Discovery Closes – The Motion in Limine

Now the Trial – What to Keep in Mind

An important but often overlooked consideration is the courtroom layout and

Post-Judgment – Final Things to Consider

First, determine whether certain arguments must be made post-judgment to

If you find yourself in an unfortunate situation of losing or about to lose your

SHARE THIS: Twitter Facebook

Judgment from the Federal Courts

In order to effectively perfect your Appeal case as a Pro Se Litigator,

Tags 1. Appeal-able Orders: Courts of Appeals have jurisdiction conferred and

A magistrate judge’s report and recommendation is not final and appealable

(b) In cases involving multiple parties or multiple claims, a judgment as to

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals

i. Orders granting, continuing, modifying, refusing or dissolving injunctions,

ii. Orders appointing receivers or refusing to wind up receiverships; and

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5:

(e) Appeals pursuant to judicially created exceptions to the finality rule:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances,

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal

4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority,

If you find yourself in an unfortunate situation of losing or about to lose your

SHARE THIS: Twitter Facebook

Perhaps one of the biggest misconceptions regarding preserving an adequate

What to Keep in Mind as Your Case Proceeds

After Discovery Closes – The Motion in Limine

Now the Trial – What to Keep in Mind

An important but often overlooked consideration is the courtroom layout and

Post-Judgment – Final Things to Consider

First, determine whether certain arguments must be made post-judgment to

If you find yourself in an unfortunate situation of losing or about to lose your

SHARE THIS: Twitter Facebook

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

Oral argument are scheduled on certain dates;

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

The largest category of pro se litigants are prisoners;

The court is permitted to move cases up in priority;

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

Panels are set 1 year in advance;

If you find yourself in an unfortunate situation of losing or about to lose your

SHARE THIS: Twitter Facebook

Why Is It Impportant For Nevada Homeowners to Protect their Homes?

In Nevada, homeowners must be aware of mortgage loans and foreclosure laws

How Can you Handle the Issues of Missed Payments

What Are Your Option About Missing Quite a Few Payments

How Can You Handle Pre-Foreclosure Loss Mitigation Review Period

What About Deed of Trust, What You Need to Know