Melbourne, FL asked in Appeals / Appellate Law, Foreclosure and Real Estate Law for Florida

Q: We had a mortgage in 2007.It didn't create a lien on our property.We lost our homestead to foreclosure.We appealed

the 5DCA per curiamed our appeal. We motioned to vacate judgment, sale and certificate of title. We discovered thru the SEC that the trust was nonexistent.I showed the judge the release of mortgage. We were sued by a nonentity with no lien on our property and judge denied our motion. We are in appeals again. My argument for the court is Article X Section 4 Homestead Exemption doesn't allow the sale of our house on judgment liens (which is disguised as a foreclosure). FL statute 695.01 should protect us as well. I am opting for an oral argument this time. We are pro se. We were told we were being unrealistic in believing we could win. We were issued a Writ and have moved. A real estate company is trying to sell our homestead now. We are hoping that due to title being lien free that the title will be unmarketable. What do you think regarding our argument to the 5DCA and in regards to the title.

2 Lawyer Answers
  • Estate Planning Lawyer
  • Santa Rosa Beach, FL
  • Licensed in Florida

A: With all due respect, you are in over your head in trying to handle this type of case yourself. Also, you rendition of facts are extremely complicate and apparently your case is still pending on appeal.

I am not able to provide you any type of guidance via this online service.

I can only recommend that you consult with an experience foreclosure defense attorney.

Good Luck.

Marcel Wurms agrees with this answer

  • Consumer Law Lawyer
  • Boca Raton, FL
  • Licensed in Florida

A: I agree there is no way to tell and you are way over your head some of the stuff you are saying is simply not correct. ANY mortgage creates a lien on real property, that is what a mortgage is by definition, the lien that secures the note (debt). Your constitutional argument is incorrect as well. If the bank lent you money to buy the home then by definition they have AT LEAST an equitable lien they are entitled to foreclosure; at most a full on mortgage. And if Certificate of Title issued you are not entitled to ANY appellate relief; you can ONLY appeal an order within 30 days, and you are raising substantive arguments that would have been an appeal of the final judgment. Post-judgment and 30 days expired you cannot challenge the facts of the case; only was the auction handled improperly (a very narrow set of facts) which you make no allegation. I agree that it sounds like you are being unrealistic and likely have no chance because the appeal and arguments are untimely.

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