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Hi I'm Eric Lanigan with Lanigan and Lanigan I want to take a couple of minutes and talk
about a common misconception. We find people coming into our office in a foreclosure scenario
where the court has already entered a judgment, typically a summary judgment and set the sale
date. Which is typically going to be anywhere from a month to three months out from the
date that the judgment was entered.
The typical scenario we're presented with is the client comes in and says well they've
been told that unless the bank agrees to put off the sale date that there's nothing that
can be done to stop the sale unless you want to post a bond that would which would amount
to at lease one and a half times of the foreclosure judgment. That is technically correct but
as a practical matter it's wrong because there is a way to essentially freeze the property.
And the way that it can be done is as follows.
When a judgment is entered you can file an appeal of that judgment and at the time that
you file that appeal you file a notice of lis pendens and this is something that you
would recall that when your foreclosure action was filed you got served not only the foreclosure
complaint but a copy of the notice of lis pendens. Now all that is is a filing in the
public records that is notice to the world that title to this particular piece of property
is being litigated and therefore buy it at your own risk.
Well you're still litigating the title to the property when you're filing the appeal.
So while the bank may withdraw their original notice of lis pendens, the property is now
subject to the lis pendens you have filed. Now what's the practical affect of that? Well
if the property goes to public auction through the judicial sale, who's going to buy a property
that the know is subject to a lis pendens that is still being litigated?
As a practical matter nobody's going to buy it other than the bank so while they may technically
buy back the property or buy the property at the foreclosure sale there's really nothing
they can do with it because they really can't put the property on the market, because again,
any potential buyer, any potential realtor looking for property for a buyer is going
to see that this lis pendens has been filed and therefore this property is embroiled in
litigation and they're going to move on to some other piece of property.
So effectively as long as the appeal goes on which in most cases in Florida these days
probably at least a year. That property is going to be frozen, no one's going to buy
it so your ability to negotiate to try to make something work with the property is going
to still be there it's not going to get transferred off into the hands of some third party purchaser.