There are a few ways to stop a sheriff's sale in Ohio and Florida, but they require some legal knowledge to apply.
The sheriff's sale/auction is one of the last steps in foreclosure. Having a sheriff's sale/auction scheduled means that the bank has already filed a foreclosure lawsuit against you, served you, and obtained a judgment from the court to sell the property.
The sheriff's sale/auction allows the bank to sell your property for money, which it then applies to your loan. If the sale price is not enough to cover the loan, you owe a "deficiency." If the sale price is higher than your loan, you are entitled to a check for the surplus.
Methods Available to Stop a Sheriff's Sale in Ohio and Florida
This is the only guaranteed way to stop a sale. Federal law requires the sale be halted as soon as bankruptcy is filed. Chapter 13 may resolve the underlying judgment.
File a OH 60 or FL 1.540 Motion
The most complex way of stopping the sale requires a technical motion be filed in court to reopen the case, effectively giving you another chance to defend the foreclosure.
If you have good cause, the judge may allow you extra time to resolve the foreclosure short of the auction. This is not mandatory and the judge need not grant it.
Outside of bankruptcy, stopping a foreclosure sale in Ohio and Florida requires a judge’s order. This is because a sale is only scheduled after the entire case is lost and judgment is taken. In order to stop the foreclosure and sale at this late stage requires reopening the entire case, and then starting from scratch in the lawsuit.
We have found that few judges are happy about allowing a homeowner to start from scratch so it’s a bit of work. For that reason, our law firm generally asks for a deposit up front before we agree to take on a case at this late stage, in addition to our normal monthly payment.
Can an appeal stop a sheriff's sale/auction?
Generally, no. Filing an appeal is generally not a good enough reason to stop a sheriff’s sale. One major reason for it not being helpful is that an appeal is about the judgment that was put into place - not the fact that a sheriff's sale was scheduled. The foreclosure judgment is what is attacked in an appeal, not the fact that the sheriff's sale was scheduled.
Further, the appeal must be taken within 30 days of the date of judgment in order to be valid. In the event that you successfully file a "Notice of Appeal" within the correct time period, then you may ask the judge to stop the sheriff's sale. First you have to ask the judge that already ruled against you before you can ask the court of appeals for that same relief. The motion you file is called a “Motion to Stay Execution of Judgment.”
Ohio and Florida judges have very wide discretion in whether to grant stays to stop any sheriff sale/auction. Many times the court will require you post a bond in order to stop the sale. As you will find out, surety bond companies generally want 100% cash collateral for the bond. This means you probably must have cash for the entire amount of the bond. You will find some judges allow for very low bonds, other judges extremely high bonds, and yet others may waive this requirement. Attorneys who regularly work in this area can give you a good idea of what you can expect on this front.
More about stopping a sheriff's sale/auction in Ohio and Florida
Method #1: Bankruptcy
The only guaranteed way of stopping a sheriff’s sale in Ohio or Florida is to file bankruptcy. Both Chapter 7 (total release of debts) and Chapter 13 (repayment plan lasting 3 to 5 years) provide for an immediate halting of all creditor actions, including stopping a foreclosure sheriff’s sale/auction. The sheriff sale/auction is stopped the very minute you file your bankruptcy petition, even if that filing is the morning of the sale (just make sure you file a notice with the foreclosure court).
Remember, the sheriff’s sale/auction is different that the foreclosure lawsuit. If you are just being served, there might not be a need to file bankruptcy, unless it is appropriate for your overall situation. Also, a Chapter 7 will not resolve the underlying judgment if you want to keep your home. You will need to consider Chapter 13 instead. Bankruptcy does not entitle you to a loan modification, either.
Method #2: Motion for Relief from Judgment
A Rule 60(B) motion in Ohio (Rule 1.540 in Florida) is a request to the foreclosing judge to set aside the foreclosure judgment and reopen the case. The procedural mechanism in is a “Motion for Relief From Judgment” pursuant to Civil Rules of Procedure. The Rule requires you show three things: 1) That you state one of the grounds under the Rule, such as excusable neglect under (B)(1); 2) That you show a meritorious defense or claim is available to you if the judgment is reversed; and 3) That your motion for relief from judgment is timely. All three things must be addressed in your motion in order to win this motion.
In addition to this kind of motion, you will probably want to file the above referenced “Motion to Stay Execution of Judgment. Our law firm's foreclosure defense attorneys may be able to help.
Method #3: Loss Mitigation
Federal law (RESPA) now requires mortgage companies stop a sale if you submit a completed loan modification package to them at least 37 days before the sale. It must stop the sheriff's sale until it has responded to your request. But your application must be complete or facially complete in order to trigger this limitation. Also, we recommend that be into your lender at least 45 days prior to the sale date under the code.
Despite this law, in our experience, most mortgage companies tend to ignore it. It is very frustrating for people to lose their homes to such a blatant violation of federal law. If that happens to you, you should immediately contact a law firm like Doucet to help. The federal law provides for damages and attorneys fees for these violations, and we have recovered thousands of dollars for our clients who lost their homes to such nonsense.
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