Tonight! I'm Back! Talking about Motions to Vacate, Motions for Rehearing, Motions for Reconsideration and Appeals 6PM EDT 3PM PDT

Oct 29, 2020

THE MOMENT YOU FIND YOURSELF SAYING “BUT JUDGE, YOU DON’T UNDERSTAND,” YOU HAVE ALREADY LOST.

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Tonight’s Show Hosted by Neil Garfield, Esq.

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In my experience most motions to vacate are actually motions for rehearing. There is a huge difference. Failure to understand these differences results in thousands of hours of legal work that are completely useless except perhaps as a delay tactic. In order to score points in this arena you must (1) disabuse yourself of the notion that you’re dealing with a “standard mortgage loan” and a “standard mortgage foreclosure” and (2) know how to use that knowledge to make legal points that cannot be ignored by the trial court or an appellate court.

Just because you labeled a pleading as a motion to vacate does not mean that it will be treated as such. Nor should it. Just like an assignment of mortgage or beneficial interest in a deed of trust is not an assignment of mortgage if it does not include transfer of the underlying the debt after payment of value — either on the face of the instrument (making it facially invalid if there is no recitation of transfer of the debt for value paid) or concurrent with the assignment is a separate transaction — requiring actual proof of payment and transfer from someone who owns the underlying obligation.

Tonight we talk about an area of law that is confusing for lawyers, lay persons and even judges. There is a difference between a motion to vacate, a motion for rehearing and a motion for reconsideration. And generally the decision comes down to manifest injustice. Trial court decisions are not corrected on appeal unless there was a clear mistake by the trial judge that would have resulted or probably would have resulted in a different decision.

Appeals are not about whether the judges on the appellate panel would have decided the case differently. And an appeal is not a forum for rearguing a case. The case has been heard and its final unless there was error and it resulted in a violation of due process where that violation resulted in a decision that would have been different if the violation had not occurred. But even if all that is true, the court will not and may not even consider the issue unless it was timely and properly raised and preserved, without intentional or unintentional waiver, in the trial court.

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