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Steve
Once summary judgment is granted to the Plaintiff and a minute order filed, local rules state that the judgment entry must be filed with the clerk within 20 days of the date of the minute order filing. Could anyone here help me  understand what happens if the journal entry is filed 45 days later? Is there a term of court after judgment rendition that allows the trial court to retain jurisdiction? If the final judgment is not filed within 20 days, does the trial court still have jurisdiction? 

Also the rules say the final judgment must say it is final in its title, or it is filed as a non-final judgment. When does the appeal clock start ticking if it is still no final? Can the house be set for sheriff's sale on a non-final judgment?
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Aaron
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Once summary judgment is granted to the Plaintiff and a minute order filed, local rules state that the judgment entry must be filed with the clerk within 20 days of the date of the minute order filing. Could anyone here help me understand what happens if the journal entry is filed 45 days later?


This is the kind of issue that is going to heavily depend upon both the precise wording of the Rules of Civil Procedure of your jurisdiction, as well as the cases on the Rules. That is, this is likely to be jurisdiction dependent.

First, find the precise language of the applicable Rule. Then, use text from the Rule in searches of Google Scholar (free), LEXIS, or WestLaw to find cases interpretting and explaining the Rule. In many jurisdictions, some legal publisher will have published a copy of the "annotated rules". This published copy will probably give the leading cases in which the rule was discussed.

Most academic law libraries now have web accessible card catalogues. Use the web to find the law libraries of academic instiutions in your jurisdiction. Search the online card catalogues of law libraries of your state to find titles which might include a copy of the annotated rules.

Also, Amazon.com sells just about every title. Search the catalogue of Amazon for relevant titles. West Publishing is a leading legal publisher. You might also find a relevant title searching West's online sales listings.

Some state rules precisely correspond to the Federal Rules. When the state rules follow the Federal Rules, usually state courts will look to Federal Rules decisions and even state court decisions in other states in resolving ambiguities. The Federal cases and out of state cases wouldn't be binding, though, and whether a state court follows these decisions would be elective. Such out of state decisions might be said to be persuasive rather than authoritative.

Finally, realize that Miller & Wright and Moore have published treatises on the Federal Rules. These include some good discussion about virtually every topic of civil procedure. Again, these would not be authoritative as to your state. At best, the discussion would give you a more complete understanding about how courts elsewhere have resolved similar questions.

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Is there a term of court after judgment rendition that allows the trial court to retain jurisdiction?


In antiquity, trial courts in many places lost jurisdiction at the conclusion of a court term unless a case was renewed. Modern practice has mostly done away with this artificial discontinuity and tends to mostly treat all cases as continuing without any necessity of renewal. This is going to be a question that is also dependent upon the constitution, statutes and rules of your state.

Most often, the way a trial court loses jurisdiction is by entering a final judgment.

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If the final judgment is not filed within 20 days, does the trial court still have jurisdiction?


Look to the rules of your jurisdiction and the cases on the rules. Most likely, if the final judgment is not filed, it is not a final judgment. In most places, it is the filing that triggers deadlines, not the court's declaration as to how it is ruling as exemplified in the minutes, but, again, this is something that you are going to need to carefully research in respect of your jurisdiction.

I want to add that most attorneys in your state will probably not know the answer for sure without researching this. You really need to read the cases!

My intuition is that the rule is going to turn out to lack teeth. That is, I suspect that failing to timely file is going to have no direct consequence on the validity of the judgment and that the only real danger to the party that is remiss in presenting a proposed final order or judgment to the court is that they may tax the court's patience.

Basically, until the judge signs the final judgment, he can still change his mind. He can even usually change his mind upon motion by a party or possibly even sua sponte for some limited period after rendition of judgment (inclusive of filing).

My guess is that the sanction for failing to present a final order or judgment to the court is that the court might decide to dismiss a case for failure to prosecute.

One other note is in order about practice. Very often, when a judge decides a case, he relies upon the prevailing party to prepare a proposed final order/judgment. The court often expects and the state or local rules may actually require that the proposed judgment be circulated to the other parties for approval as to form.

Thus, if the court enunciates an intention to rule for one or the other party, the court is often expecting that the prevailing party will follow up by preparing that proposed judgment and circulating it to one or more of the parties for approval as to form. This presents the counterparty an opportunity to request changes to the order to correct errors or to make the order conform to the court's actual decision.

An abusive tactic often employed by dishonest foreclosure mill attorneys, particularly when litigating against pro se litigants, is to fail to circulate the final order for review and approval as to form to the defendant. When a proposed order is circulated, the court is expecting the parties to reach an agreement as to the form of the final order or judgment. If the counterparty does not agree to the form of the order, the prevailing party can still submit the order (without agreement) to the court. But the losing party can object to the form of the order (in writing) and request that the court make the changes that the losing party identifies.

Thus, when a court is presented with a final order unsigned by the losing party (as to approval of form), the court ought to wait at least a few days to sign the order to give the losing party an opportunity to present its written objections. If the court signed the order immediately, this would actually be somewhat abusive in denying the losing party an opportunity to present its objections as to the form of the order.

Thus, what you seem to see as some sort of abuse by the court, I am more inclined to see as the court showing some restraint to accomodate the real interests of the losing party in presenting objections to the form of the order. In my view, absent some really strong case law showing that a final order or judgment was lacking in authority when signed late, you are going to discover that the judge and the appellate court will be totally bored with any assertion that this involved any impropriety. The court is more likely to find any such assertion to be not only baseless, but totally frivolous, since the court was probably [u]waiting to be fair to you![/b]

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Also the rules say the final judgment must say it is final in its title, or it is filed as a non-final judgment. When does the appeal clock start ticking if it is still no final?


Once again, you need to look to the jurisprudence of your state for the answer. The cases I have seen in several jurisdictions tend to emphasize the substance of the order rather than the caption. That is, if a final order or judgment is captioned as a "final order" or "judgment", but fails to dispose of all the issues or to resolve all claims as to all parties, it is often not a final judgment. However, there are always going to be some close cases!

Usually, a truly final order is going to not only have a caption that says it is a final order, but will have some "Mother Hubbard" language that resolves all ambiguities. It might say something like: "This is a final order disposing of all claims of each and every party and is appealable."

If you are in doubt as to whether an order is final, it is probably in your interest to err by filing a notice of appeal and paying the appellate filing fee. If you fail to do this and a court later decides that the ambiguous order was final, you will have missed your opportunity to appeal. If you appeal and the order is found not to be final, your appeal will be dismissed, but at least you will have some clarity about the finality of the order.

If the order fails to dispose of your counterclaims or cross-claims, you can usually voluntarily dismiss these claims resolving the problem. One common mistake pro se litigants make is to copy a bunch of junk counterclaims into their answer and then never seek adjudication of the counterclaims. The grant of summary judgment which fails to dispose of the counterclaims is then not actually a final order and cannot be appealed. The ignorant pro se litigant then stews in his own $hit. If you have a real counterclaim or third party complaint, pursue it and get it resolved. If you have some specious claim that cannot be proven that you copied off the web site of some scam artist, you need to be prepared to dismiss these claims if you want to appeal.

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Can the house be set for sheriff's sale on a non-final judgment?


Yes! Absolutely.

The house can be sold at sheriff's sale and the plaintiff can obtain a confirmation of that sale without a final order!


This is a very common tactic employed by the mills when ignorant pro se litigants load up the answer with junk counterclaims. The plaintiff just rolls right over the defendant, scheduling the matter for sale, getting a confirmation and selling the property.

The defendant usually lacks the resources to file a supersedeas bond or your state's equivalent. Without posting bond, usually an appeal will not suspend the judgment. The plaintiff will usually complete the foreclosure, including the confirmation of sale (which often is another separate order, which might still be treated as a final order, as to appeal). After the property is sold and the defendant is ejected, the plaintiff will move for a dismissal of the appeal due to the order not being a final order! The appeal will be dismissed and the defendant will be left homeless with some useless counterclaims. The plaintiff then waits a while and either moves for summary judgment on the counterclaims or moves for dismissal of the counterclaims due to failure to prosecute.

None of this is going to end well for the defendant. Again, if the defendant has real and valid counterclaims which can be proven, then the defendant probably needs to move for defensive summary judgment on the counterclaims. If the defendant fails to do this and the plaintiff prevails on summary judgment on its own claims, then existence of the coutnerclaims usually precludes an appeal.
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Steve
Thanks, Aaron. I will check out these resources to see if I can find help with cases like this. I filed a motion for summary judgment as well, because the alleged foreclosing party no longer exists. 

I called the judge's clerk to ask about the missed deadline for filing the final judgment, she put me on hold to inquire with someone (not sure where she checked)  then said the case would be dismissed if the final judgment was not filed with the clerk within 20 days.
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Brad
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I called the judge's clerk to ask about the missed deadline for filing the final judgment, she put me on hold to inquire with someone (not sure where she checked) then said the case would be dismissed if the final judgment was not filed with the clerk within 20 days.


You seem to be in a big hurry to become homeless. I am unsure what you think you just accomplished other than speeding up your own dispossession. The Clerk will now call the plaintiff's attorney to remind them to prepare and file a proposed judgment. Even if the plaintiff's lawyer fails to do this within twenty days, the court is exceptionally unlikely to dismiss based upon this failure. More likely, they will wait until you again call to remind them of your hurry to become homeless and then will probably send a written notice to the plaintiff stating that the case might be dismissed if they fail to file the required proposed judgment.

If the plaintiff misses the second written deadline and the case is dismissed, then the plaintiff can probably move to have the case reinstated, showing that the failure to file the proposed judgment was excusable neglect.

It is unclear whether a dismissal under such circumstances would be a dismissal with prejudice. In some places, this might be treated as a dismissal on other than the merits and the plaintiff can then just re-file and start over.

You must be a particularly ardent supporter of homelessness to be so eager to accelerate the completion of your own foreclosure. Are you being coached by some other idiot like Mike H.?
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Gil
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Thanks, Aaron. I will check out these resources to see if I can find help with cases like this. I filed a motion for summary judgment as well, because the alleged foreclosing party no longer exists.


I hope you understand that if you failed to properly plead the plaintiff's lack of capacity as an issue as expressly provided for in the rules, then you probably waived the capacity issue. Generally, defenses you raise only in a motion for summary judgment or opposition to a plaintiff's motion for summary judgment not expressly set forth within your answer or amended answer are going to be found to be outside the pleadings.

If you failed to properly plead this issue, in its summary judgment response, the plaintiff need marshal no evidence at all. All the summary judgment response need do is identify that the issue is outside the pleadings and thereby waived and the plaintiff will be entitled to a denial of your MSJ, even if there is no such entity or the entity is defucnt or extinct.

On the other hand, if the plaintiff responds to your MSJ without pointing out that this issue is outside the pleadings, the court could find that the issue was tried by consent.

If you properly plead this issue, it can be quite potent! If you failed to properly plead this issue then you probably have no issue at all unless the plaintiff is so foolish as to overlook that you failed to include this defense in your answer.

Also, if you failed to plead this issue, you might still be able to amend your pleadings to interpose this argument as a defense in the answer. Whether you can amend your answer depends heavily on both the rules of your jurisdiction and whether the court imposed any docket control order setting explicit deadlines for various filings.

One thing the scam artists and swindlers do is charge distressed borrowers enormous sums of money to coach the defendents to make legally erroneous arguments. If you read and followed Mr. Roper's posts and plead capacity as a defense in your answer (NOT an affirmative defense), then you could win on this issue alone. If you scraped or copied some of the garbage pleadings off of the web or purchased such garbage from teh scam artists, then you have probably already lost your case.
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Steve
Brad, you must be so proud of yourself, you are such a great bully. You've learned to be the epitome of rudeness, and calling people names is so brave of you. If you have children, I'm sure they want to be just like you! 


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Jeremy
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Brad, you must be so proud of yourself, you are such a great bully. You've learned to be the epitome of rudeness, and calling people names is so brave of you. If you have children, I'm sure they want to be just like you!


Steve, I would agree that Brad's post is overly harsh. But I also think that he is seeking to dramatize both that this is unlikely to be a productive avenue and that the Clerk is really unlikely to be your friend.

You need to recognize that folks working in the Clerk's Office are very likely the recipients of a little special something a the Holidays -- might be a Christmas basket, bottle of Scotch or case of grapefruit -- from attorneys regularly practicing before a court. Attorneys probably also contribute to the political campaigns of the elected clerks, etc.

NEVER expect the personnel at the Clerk's Office to CALL YOU when you are faced with a key deadline or the critical effects of an error. ALWAYS expect that the Clerk will bend over backward to assist the plaintiff's attorneys. The Clerk will be very nice to you, because the Clerk doesn't want to be the victim of slashed tires or an assault by a crazed litigant. But the very instant that you get off the phone with the Clerk, calling attention to the errors of the other side, you can RELY UPON the Clerk calling some key contact at your adversary. And if the Asst. Clerk who answered your call doesn't do this, you can be sure that the Clerk working directly for the Judge or the Judge's office administrator, etc., will make that call. You will NEVER KNOW ABOUT the call and will never be able to prove that such a call took place.

Despite Brad's rudeness, I think that the point he makes is exceptionally valid. Attorneys I know refer to this as "letting a matter ripen". If the rule says that the judgment is to be filed in 20 days and the paperwork is filed in 25 or 30 days, there is no Court in the U.S. where a Judge is going to dismiss based upon the five or ten day delay. Nor is any appellate court going to ever support you in trying to make an issue of it. Re-read Aaron's helpful post.

Not mentioned by Aaron is the issue of prejudice. That is, how are you prejudiced by this delay? You aren't. You simply remain in the property longer after the Judge already ruled against you.

Your response is typical of many pro se litigants filled with ardor, based mostly upon a totally specious understanding of the law promoted by the scam artists. There is going to be no remedy for you whatsoever as a consequence of the late filing, because you can never actually demonstrate any prejudice. As asserted by Brad, you have simply called the plaintiff's attention to the mistake and helped them to be aware of the necessity of timely correcting it.

The far better strategy would have been to DO NOTHING and to allow as much time as possible to run before communicating with the court or the plaintiff. Every communication energizes the other side. For all you know, the person (paralegal) responsible for preparing and forwarding the proposed judgment may have dropped dead from a heart attack, gone on pregnancy leave, left the firm or accidentally deleted the electronic file. Your communication with the clerk probably assures that the file will be found and the paperwork filed in a timely way.

Your filing of the belated defensive motion for summary judgment probably has the same effect. Rather than prepare any response, it encourages the the plaintiff to file the proposed judgment as quickly as possible, since this will completely dispose of all issues in the case, including your belated motion.

What I perceive from your posts is a kind of bone headed defensive strategy which seems mostly to be informed by the websites and posts from scam artists and swindlers. It was to this, that Brad seemed to be dramatizing your ineptness.

Best of success!
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Kyle
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What I perceive from your posts is a kind of bone headed defensive strategy which seems mostly to be informed by the websites and posts from scam artists and swindlers. It was to this, that Brad seemed to be dramatizing your ineptness.

I know of one previous regular participant at the Forum who was the subject of an order from the bench granting the plaintiff's foreclosure. The plaintiff's lawyer forgot to submit the proposed judgment and last I heard that borrower has never yet suffered a judgment now more than two years after the matter was supposedly determined. I think it will be three years in June.

It is really amazing to me that anyone would be so foolish as to call up a Clerk to complain that the order hadn't yet been filed. It seems to refelct not merely a complete misunderstanding about the law, but a complete disconnection from reality.
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Steve
Assumptions were made on this thread about my questions. First, I called the clerk after the journal entry was filed, which was 45 days after the minute order deadline, and the journal entry does not title the judgment as a final judgment and it does not resolve all issues, therefore, the journal entry was (by the Local Rules) to be filed as a non-final judgment--thus my confusion about how this affects my appeal. The clerk had no idea who I was when I called or the case it involved, as I identified neither.

I am here asking questions only because this is confusing, not because I am a bonehead taking advice from scammers. 



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Norm
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Assumptions were made on this thread about my questions. First, I called the clerk after the journal entry was filed, which was 45 days after the minute order deadline, and the journal entry does not title the judgment as a final judgment and it does not resolve all issues, therefore, the journal entry was (by the Local Rules) to be filed as a non-final judgment--thus my confusion about how this affects my appeal. The clerk had no idea who I was when I called or the case it involved, as I identified neither.

I am here asking questions only because this is confusing, not because I am a bonehead taking advice from scammers.


Be sure to check the Rules of Appellate Procedure for your jurisdiction (if separare from teh Civil Rules) and related statutes govening appellate court to better understnad the contours of appellate practice. In some places, if a notice of appeal is filed prematurely it is treated as timely filed after events which render it necessary. Consequences of filing a notice of appeal late tend to be unforgiving.

Be sure to carefully contemplate any interlocutory orders as well as the final order or judgment to designate as being the subject of the notice of appeal. In most places, while interlocutory orders are not immediately appealable, these can often be appealed as part of the process by which final orders or judgments are appealed.

While it is often very difficult to make out a valid and effective appeal from these interlocutory orders, to the extent that you had issues resolved against you incorrectly, such as discovery orders, these can still be the subject of that appeal. Usually the appellate courts are very dederential to the trial court's holdings as to docket control orders, orders relating to motions to amend pleadings and discovery orders, but this is not without exceptions. If in doubt, include mention of these orders in the notice of appeal. You can always later decide to abandon appeals of some of these other issues, but often appellate rules constrain the appeal to those orders actually identified in the notice of appeal.

Some aspects of practice can be somewhat opaque and the foreclosure mills, often with the help of court personnel, do their best to confuse and befuddle pro se litigants. Whether you have been drawn in and confused by scam artists, the bulk of the material posted online at most foreclosure defense sites is legally erroneous and even specious, so others are right to caution you against believing the nonsense posted online. Read the rules. Read the cases on the rules.
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