IN THE XXXXXXX DISTRICT COURT OF APPEALS STATE OF FLORIDA

Transcription

1 IN THE XXXXXXX DISTRICT COURT OF APPEALS STATE OF FLORIDA XXXXXXXXXX, Defendant/Appellant v. XXXXXXXXXXXXXXX, Plaintiff/Appellee, CASE NO, L.C. NO. EX PARTE EMERGENCY MOTION TO REVIEW PURPOSED ORDER DENYING STAY OF FORECLOSURE SALE SCHEDULED FOR XXXXXXX XXTH, 20XX EX PARTE EMERGENCY MOTION TO STAY FORECLOSURE SALE BY STAY, INJUNCTION OR WAIVER OF FEES FOR SUPERSEDEAS BOND. Defendant/Appellant, XXXXXXXXXXXXX, pro se, moves this Court to enter an Ex Parte Order for a Stay and/or Injunction, or waiver of bond fees to cancel the pending Foreclosure Sale on the real subject property scheduled for XXXXXXX XXTH, 20XX, pending this appeal. In addition, RULE permits a stay pending review. Therefore, at minimum, Defendant/Appellant is asking for a stay pending review of the Proposed Order attached to the Notice Of Appeal; Defendant/Appellants Motions with Exhibits I, II, & III are attached, ensuring that the Civil (lower Court did not abuse its discretion, and that there were no genuine issues of fact remaining in reference to the denying of the stay of the foreclosure sale, at the final hearing.

2 Defendant/Appellant filed a NOTICE OF APPEAL with the Clerk of Court in XXXXXXXXX County on XXXXXXX XXTH, 20XX. Defendant/Appellant has attached a copy of that filing. The Clerk stated that it could take up to three days before it could be entered into the system and then forwarded to the District Court. Therefore, due to the pending urgency of the upcoming sale, Defendant/Appellant had- no choice but to submit this Ex Parte Motion in order to request to cancel/postpone the foreclosure sale scheduled this Friday, XXXXXXX XXTH, 20XX. In addition, with the Appeal process just being initiated, Defendant/Appellant needs additional time to prepare an "Opening Brief". Also, to currently provide the details in their entirety, would be "putting the cart before the horse". For Defendant/Appellant to loose her home in a sale this Friday would be an injustice, because if sold, the issues at hand would then become "moot". Therefore, in order to expedite the canceling of the sale, Defendant/Appellant has attached copies of documents from the lower court that were in question that were not addressed in the Circuit Court in reference to "standing" and "capacity" where on their face it is obvious that there are outstanding issues. The grounds for this Motion are based on the following: 1. Likelihood of success on the merits. In fact this case has NOT been resolved on its merits in the Civil (lower Court. The evidence in the Exhibits provides the burden of proof that substantiates the points under contention as discussed in the attached Defendants Motions. In addition, discovery was in process; Defendant/Appellant had only received answers to the...amazon.com/gp/.../print-label.html 2 1/1

3 interrogatories in May Other requested discovery was never provided. Defendant/Appellant had to proceed throughout this case diligently researching and requesting documents through other means. In addition to the attached Exhibits, additional documentation will prevail on the success of the merits of this case. Lastly, once the Sheriff's sale occurs, the merits of the trial court's foreclosure order become moot. 2. Irreparable injury: Defendant/Appellant has and will continue to suffer significant and ongoing injuries and damages, including the loss of her home if emergency injunctive relief is not granted. In foreclose cases, as in all other civil actions, after the matter has been extinguished through satisfaction of the judgment, the individual subject matter of the case is no longer under the control of the court and the court cannot afford relief to the parties to the action; no relief can be afforded once the property has been sold at a foreclosure sale because an appellate court is unable to grant any effectual relief at that point. 3. Balance of harms: Defendant/Appellant has invested approximately in the subject property. In today's market and economy the subject property's value is about the same. Defendant/Appellant could never recoup her losses after a sale on this property. Time is the only factor as real estate will one day begin to appreciate. Plaintiff/Appellee will not loose, as time will only add to the purchase price of the sale on the home rendering them more money as well. In addition, the property is well maintained, and requires extensive on-going maintenance due to the 40 year age of the home....amazon.com/gp/.../confirm-label.htm... 3 l/l

4 interest: Saving the Defendant/Appellant home from sale would be in the public interest in a market where there is an over abundance of homes not only vacant, but also for sale. In addition, homes with a higher value are on the market for many additional days before being sold. Other issues to consider are the additional maintenance and requirements necessary in order to protect surrounding properties. Defendant/Appellant is maintaining her property and will continue to do so for the benefit of all parties concerned. The additional factor is the option of a supersedeas bond if warranted, where Defendant/Appellant requests that the monies be waived as the collateral is in the subject property. Thus, in general, an overriding principle is that courts will eliminate or reduce the bond requirement only when doing so does not unduly endanger the judgment creditor's interest in ultimate recovery. If the instant Motion is not granted, Defendant/Appellant will suffer irreparable injury, including in the form of the loss of her home and eviction therefrom. Defendant/Appellant did in fact Motion the Civil Court to Stay the foreclosure Sale while Discovery was still in process which was DENIED as noted in the Notice of Appeal #4 order pending. Defendant/Appellant did in fact contact the attorney for the Plaintiff/Appellee, XXXXXXXXX of XXXXXXXXXXXX, three times: first telephonically on Friday XXXXXXX XXTH, 20XX around 5 PM and requested that the sale be cancelled where XXXXXXXXXX stated that she would have to ask her client, and then followed up on XXXXXXX XXTH, 20XX, only to be able to leave a message, and the

5 same on message. XXXXXXX XXTH, 20XX, only to be able to leave another Therefore, as noted, Defendant/Appellant, through her good faith efforts has exhausted all other remedies in order to cancel the Foreclosure Sale set for XXXXXXX XXTH, 20XX. This Motion is being filed in good faith based on Federal and State law legal grounds for relief and not for any purpose of delay. WHEREFORE, Defendant/Appellant respectfully requests that this Court grant the relief requested by a stay, temporary or permanent injunction, or waiver of supersedeas bond fees for the reasons set forth, and for any other and further relief which is just and proper. Respectfully Submitted, XXXXXXXXXXXXX, pro se Address: XXXXXXXXXXX XXXXXXXXXXXXXXXXXXX Phone: XXXXXXXXXXX Fax: XXXXXXXXXX e-ma i1: XXXXXXXXXX CERTIFICATE OF SERVICE XXXXXXX XXTH, 20XX I hereby certify that a true and correct copy of the foregoing has been furnished by, this day of, 20, to the following attorney(s for Plaintiff/Appellee: XXXXXXXXXX pro se.amazon.com/gp/.../print-label.html 5 i/i