Appeals To A Scheduled Sale

15 Jun 2017

Our Firm has noticed a substantial increase in the number of appeals being filed against lien foreclosure judgments. Part of this is attributable to the overall decrease of foreclosure matters, and the increase in the number of individuals that cannot reasonably file for bankruptcy to stay a sale (due to the party owning multiple investments, having adequate assets, etc.). A Defendant/Appellant filing an appeal to a lien foreclosure judgment can be a frustrating and infuriating occurrence for an Association. And the reasons for filing an appeal can vary greatly. Sometimes the appeal is filed because a legitimate judicial error was made during the course of proceedings; sometimes the appeal is filed solely to further delay the lien foreclosure action. Regardless of the rationale for filing the appeal, many Associations simply want to know what will now happen to the (already set) lien foreclosure sale date. Below is a brief explanation concerning whether a lien foreclosure sale is automatically cancelled when an appeal is filed, and what steps an Association’s Attorney can take to make cancellation of the sale more difficult.

First and foremost, simply filing an appeal does not result in an automatic stay or cancellation of the lien foreclosure sale. This is because a lien foreclosure judgment is not solely a money judgment; the judgment also includes the foreclosure of the subject property. Accordingly, a stay or cancellation of a lien foreclosure sale must be specifically and separately requested by the appealing party. If a stay or cancellation is formally requested by the Defendant/Appellant, Florida Rules of Appellate Procedure (Rule 9.310(a)) comes into play. The rule states, in relevant and pertinent part, “a stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.” So essentially the Court at that point can order the cancellation of the sale and/or require the appealing party to post a bond.

It is up to Plaintiff/Appellee’s Attorney to formally request a bond be filed if the lien foreclosure sale is cancelled or stayed. It should not be assumed that the Judge will automatically order the appealing party to post a bond, and the Plaintiff/Appellee’s Attorney should demand the bond via a written motion and/or oral argument. More so, and typically, a bond in the amount of one and a half times the judgment amount should be requested. This inflated amount is requested to ensure that the Plaintiff/Appellee will be compensated for the accruing assessments, interest, attorney fees and costs during the course of the appeal. While a stay or cancellation of the lien foreclosure sale while pending appeal is not automatic, it will likely be granted by the Court (unless there is egregious conduct on behalf of the appealing party). Therefore it is of the utmost importance for the Plaintiff/Appellee to request a bond amount in (at least) the judgment amount. If the scenario plays out as described above, the Court’s Order will read something along the lines of “Defendant has until 4 p.m. to remit $XYZ into the Court Registry, and if so, the lien foreclosure sale will be cancelled. Otherwise, the sale will proceed as scheduled.”

Despite the necessity of addressing an appeal, they can be a costly and time-consuming venture. And the rules in a Court of Appeals differ greatly than those in regular court. Strict timelines must be followed and traditional notions of litigation are not in play. Clayton & McCulloh has successfully handled a number of appeals on behalf of Associations. Should you or your Association have any questions regarding appeals, or the appeal process, please feel free to contact our Firm and Attorneys.