1st STEP NOW: M/Rehearing or Reconsideration

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Don’t back off now. Most of the lawyers never had to deal with hair splitting like this before. But no matter how fraudulent and atrocious the behavior of the foreclosers, if you don’t follow the rules, you are screwed. Unless I missed the point, you want the other side to be screwed.

A Motion for Re-hearing is NOT allowed unless specifically allowed in the rules of civil procedure. It is usually provided for in the form of a ten day period after the entry of an order during which you can raise issues you think the Judge got wrong etc. If you are in that 10 day period (or whatever the period of time is allowed in your jurisdiction) file now, because the time limit is normally strictly enforced.

A Motion for Reconsideration can be filed at any time and for all intents and purposes is a substitute for the formality of an appeal,  usually when the time for appeal has run out. In the motion you can raise new evidence or anything else you like. Judges don’t like to reverse themselves, but there is a growing body of evidence they are doing exactly that. It is on the Motion for Rehearing or Motion for Reconsideration that the tables get turned and the banks are sent running for cover. I think the reason is that if the motion is drafted properly it is directed to only 2-3 clear points that are plainly outside the bounds of the rules of evidence or procedure — like the lack of personal knowledge of the signer of an assignment, affidavit, substitution of trustee etc.Once the Judge actually reads the documents he or she will conclude on their own that the affidavit, assignment or transfer is suspect.

A Motion to Vacate is filed because of the allegation of fraud upon the court or some new facts that would shock the conscience of the court and make the Judge see the light.

A Notice of Appeal is filed usually within 20-30 days of the entry of a final order, or a shorter time if it is an interlocutory appeal, which appellate courts don’t particularly like. In fact with only 15% of appeals being successful it would be accurate to say that appellate courts don’t like any appeals. Some lawyers are highly successful on appeal. The simple reason is that they understand that a challenge to the discretion of the trial judge is almost certain to fail, whereas a challenge that is based upon improper procedure or exclusion of evidence that prevented the case from heard on the merits is almost certain to succeed. Biggest mistake on appeal: thinking that you can get the court to retry the case. Second biggest mistake, is not citing to specific places in the record where your points are supported by actual facts rather than representation of facts. Third biggest mistake is not preparing a proper record on appeal. Don’t rely entirely on the clerk. You may have to reconstruct parts of the record that were not transcribed. this is possible but you need to know what you are doing.

Tags: MOtion for reconsideration, Motion for Rehearing
Posted in Corruption, Eviction, securities fraud |