In short: The homeowner lost. In Linares v. Nationstar Mortgage (Fla. 3d DCA 2013), the court affirmed without opinion. The order on appeal denied a motion to quash service of process, and an earlier appeal of the foreclosure judgment had already been affirmed. A second appeal cannot reopen issues the first one settled.
The Facts
The Third District affirmed without a written opinion, so there are no court findings. What follows is what the record and arguments showed, as described in the oral argument video.
The homeowner, representing himself, said a certificate of title issued while his appeal was pending, after he was told no hearing would go forward. At argument the panel pointed out the limits of the appeal. The order under review was the denial of his motion to quash service of process. His earlier appeal of the final foreclosure judgment had already been affirmed. The lender’s counsel was not permitted to argue at the session.
The Decision
The court issued a per curiam affirmance: “Affirmed,” with no explanation. The order denying the motion to quash stayed in place, and the foreclosure stood. A PCA is not precedent. Based on the issues described at argument, the likely obstacles were the limited scope of the appeal and the earlier affirmance of the judgment. Another was the general rule that objections to service are waived if not raised properly and early. The opinion does not say which ground the panel relied on.
The Law
Filing a notice of appeal does not by itself stop a foreclosure sale or the issuance of a certificate of title. To halt enforcement, the appellant must get a stay under Florida Rule of Appellate Procedure 9.310, usually by posting a bond set by the trial court. Without a stay, the sale can go forward and the clerk can issue title while the appeal is pending.
Objections to personal jurisdiction or service of process must be raised in the first response, by motion or answer, under Florida Rule of Civil Procedure 1.140(b) and (h). If they are not, they are waived. Once an appellate court affirms a final judgment, the law of the case generally bars relitigating the same issues in a later appeal.
Lessons
- An appeal alone does not stop a foreclosure sale. Ask for a stay under Rule 9.310 and be ready to post a bond.
- Raise service of process defects at the very start of the case or they are waived.
- After a final judgment is affirmed, later appeals of side orders rarely change the result.
- Never rely on informal assurances that a hearing or sale will not proceed. Check the docket.
Source: Linares v. Nationstar Mortgage LLC, No. 3D13-102 — Fla. 3d DCA (November 13, 2013).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Title Issued While Appeal Pending? Pro Se Homeowner Fights | Linares v. Nationstar, 3D13-0102
Go Deeper
- The Florida Foreclosure Sale: Timing, Redemption, Surplus Funds, and When You Have to Move
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
Frequently Asked Questions
Does filing an appeal stop a foreclosure sale in Florida?
No. A notice of appeal does not automatically stay the sale. You must move for a stay under Florida Rule of Appellate Procedure 9.310, usually in the trial court first. The court typically requires a bond. Without a stay, the sale and the certificate of title can proceed while the appeal is pending.
Can I challenge service of process after a foreclosure judgment?
It is difficult. Objections to service must be raised in your first filing, or they are waived. A judgment entered without valid service may be attacked as void, but you must show the service was actually defective. In Linares v. Nationstar the denial of a motion to quash was affirmed without opinion.
Can I appeal again after my foreclosure appeal is affirmed?
You can appeal certain later orders, but you cannot use them to reargue issues the first appeal decided. The law of the case doctrine generally prevents relitigating them. In Linares the earlier appeal of the final judgment had been affirmed, and the later appeal was also affirmed.
What is a certificate of title in a Florida foreclosure?
After a foreclosure sale, the clerk files a certificate of sale. If no timely objection is filed, the clerk then issues a certificate of title to the buyer, transferring ownership. Once the certificate of sale is filed, the right of redemption under section 45.0315 ends unless the judgment says otherwise.
Talk to a Florida foreclosure defense lawyer
Weidner Law, P.A. has defended Florida homeowners in foreclosure and foreclosure appeals for more than 25 years. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
