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Sunday – APRIL 14, 2019

Foreclosure Hour Easter Special: Stages, Issues and Strategies in the Resurrection of a Foreclosure Case After an Adverse Judgment

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You lost your foreclosure case by summary judgment or at trial. What if anything can you do now to save your home or secure damages for wrongful foreclosure?

Increasingly, more and more homeowners nationwide are contacting John and me, asking that same question.

Unfortunately, we do not have the time to respond personally to each such inquiry, so today approaching Easter Sunday we thought it would be a good idea to address that question on this Sunday’s radio show.

As you know, there is little consistency among jurisdictions how foreclosures are handled judicially, and even less consistency when it comes to the provision of post-judgment remedies, or the lack thereof.

Therefore, on today’s show, time permitting, our attempt can only be to present our listeners with an overview or roadmap of what homeowners face post-judgment.

You will further discover that individual jurisdictions themselves may be in a growing transition concerning what your post-judgment remedies are and might be in your individual case, adding to the difficulty in your securing a post-judgment remedy.

Until recently, all state and federal courts accepted the view, for instance, that if the court that entered judgment against you lacked jurisdiction, its judgment could be set aside at any time as void.

That however is no longer the case, as “finality” has been winning against “validity” in American courts in recent decades for many reasons, including the existence of increasing case backlogs, narrowing judicial budgets, and the fear of opening up the floodgates for past zombie adjudications.

To map out a plan for overturning an adverse foreclosure judgment, one must begin if possible by determining why you lost, which will have a direct impact on what if anything can be done in your individual case.

Some of those reasons might be that you defaulted failing to defend, or your pleadings were defective, or you did not have the money to do what needed to be done, or you had a bad judge, or your facts were poor, or the law was against you, or you had an attorney who was not sufficiently skilled, or the opposing attorney out-argued you.

Trying to understand why you lost, the next step is to plan your assault post-judgment, either as a direct attack on the judgment or as a collateral attack, or eventually both, if you have the money.

A direct attack, again after first determining if possible why you lost, can consist of a motion for reconsideration, an appeal, a request for a stay, and a petition for a writ of certiorari filed as high eventually as the United States Supreme Court, while the odds of success shrink the higher you appeal.

A collateral attack can consist of a Rule 60(b) Motion to set aside the judgment, or a new lawsuit for fraud on the court or wrongful foreclosure or to quiet title or for expungement, or a bankruptcy filing (Chapters 7, 11 of 13), or a writ of mandamus, or a writ of prohibition, or a new lawsuit for injunctive and declaratory relief.

Depending on your post-judgment plan for relief, whether a direct attack and/or a collateral attack on the judgment, there are numerous strategies, often interrelated, available to you (in addition to those claims and defenses that could be raised prior to judgment) depending on the law of your jurisdiction and, if known, why you lost.

Among such strategies where applicable are claims that the judgment is void, or the judgment was procured by fraud on the court, or due to supervening authority of retroactive applicability, or there was a lack of personal jurisdiction, or there was a lack of subject matter jurisdiction, or there was a lack of due process particularly procedural due process, or the judge was disqualified, or whatever specific objections you may have made below that were rejected or ignored.

And you should anticipate a variety of counter-attacks, consisting of motions to dismiss or for summary judgment, based upon claims that the judgment is voidable not void, or that your supervening authority is prospective in its application only, or due to laches as a result of your delay and reliance by others on the judgment, or res judicata and its twins collateral estoppel and claim preclusion, or issues of privity due to res judicata involving the same subject matter where one with the same related standing as yours lost, or the bonafide purchaser defense, or faulting your timing, or waiver including a failure to object below on the same grounds, or your lack of standing as a mere third-party purchaser, or the absence of tender, or the expiration of the statute of limitations.

If nothing else, the above illustrates how complex and how expensive this area of the law has become to litigate in, and why homeowners without sufficient money are at an extreme disadvantage, especially when usually unable to find competent legal counsel almost anywhere.

Please join John and me as we share with you our knowledge and experience, and summarize for you this expansive and little understood but increasingly important area of post-judgment foreclosure defense.

Gary

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GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

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