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Sunday –  May 28

Foreclosure Workshop #34: Bank of Hawaii v. Mostoufi; Stonecrest Acquisitions v. Rundgren — Two Case Illustrations of the Importance of a Borrower’s Right to a Stay Pending Appeal, and How That Right Continues To Be Abused
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All lawyers and all judges surely would agree that not every case in the American legal system is decided correctly in the first instance by either federal or state courts.

There are many reasons for such mistakes, some minor and some dispositive, some rare and some recurring, including confusing legal precedents, changing legal precedents, lack of adequate preparation by counsel, overburdening court congestion, variations in levels of judicial knowledge and skill, sometimes the result of simple incompetence, and personal and institutional prejudices of various sorts.

Of particular concern is the celebrated but misplaced view among some appellate judges that their principal mission is to find some way of upholding a lower court judgment in order to maintain confidence in the trial courts in their states, when in fact in many instances only through reversal can such confidence actually be maintained.

And also to the contrary, the recognized existence of mistakes at the trial level is in fact why there are appellate courts in the first place, yielding various percentages of reversals in individual jurisdictions, sometimes fairly high percentages of remands of the judgments of individual trial courts and of the judgments of individual trial level judges.

On this Sunday’s show we will explore these important issues in two foreclosure related cases, pointing out that a stay pending appeal is theoretically considered a matter of right for those suffering an adverse foreclosure result in both judicial and nonjudicial states, and how to request one.

Yet, although the forms of a stay bond can vary, which competing forms every homeowner facing foreclosure would benefit by knowing, they can variously be based, for instance, upon monthly installments representing the fair rental value of the property, or can use the market value of the property itself as complete or partial substitute security.

We will explore the differences in how such stay requests of right are non-uniformly handled nationwide, the resulting effects on individual borrowers and on the American legal system itself, and suggest urgently needed reforms in yet another highly neglected area of foreclosure litigation, although one of the most important for foreclosure defense, yet surprisingly rarely discussed anywhere.

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