Chapter 18-5 Stay of Action Pending Appeal

• Jurisdiction: United States

18-5 Stay of Action Pending Appeal

Mortgagors who have final judgments of foreclosure entered against them frequently seek a stay of the foreclosure sale while the appeal is pending. It is important to mortgagors in particular to understand that filing a notice of appeal does not automatically stay the sale.⁵⁵ A motion must be made in the lower court which entered the judgment and ordered the sale.⁵⁶

The appellate rules grant jurisdiction to the trial court for the purpose of considering whether a stay is appropriate.⁵⁷ The lower court may also reserve jurisdiction (and usually does in the case of a final judgment of foreclosure) to adjudicate collateral issues relating to attorney fees and costs.⁵⁸ In considering whether to grant a stay, the trial court should consider what is necessary to protect the judgment holder (the plaintiff in a foreclosure).⁵⁹ The trial court may also order a stay conditioned upon the posting of a bond.⁶⁰

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Notes:

^[55] Only limited circumstances warrant an automatic stay, such as the appeal of a purely monetary judgment or when the state or a public officer seeks appellate review of an administrative action. Fla R App. P. 9.310(b)(1) and (2). Neither of these exceptions are relevant to foreclosure actions.

^[56] Fla. R. App. P. 9.310(a).

^[57] Fla. R App. P. 9.310(a). As foreclosure is not purely a money judgment, there is no automatic stay of the sale. Fla. R App. P. 9.310(b).

^[58] Travelers Indem. Co. v. Hutchins, 489 So. 2d 208, 209-10 (Fla. 2d DCA 1986).

^[59] Pabian v. Pabian, 469 So. 2d 189 (Fla. 4th DCA 1985) (trial court should consider factors relevant to the individual case to determine what should be done to protect the judgment holder). In foreclosure, consideration of a stay may include whether the mortgagor has preserved the property, paid taxes and insurance, and performed maintenance, which may demonstrate a lower likelihood of waste during the stay, if one is ordered.

^[60] Fla. R. App. P. 9.310(c); Pabian v. Pabian, 469 So. 2d 189 (Fla. 4th DCA 1985).