Appellate Courts Are Not Messing Around With Frivolous Appeals.
Cowabunga, appellate (surf) fans. This next one is bound to be quoted on the topic of frivolous appeals. Here are the beginning lines: “Some appeals are filed to delay the inevitable. This is such an appeal. It is frivolous and was ‘dead on arrival’ at the appellate courthouse.’”
Although we have to surmise a bit, residential subprime borrower was facing foreclosure and was trying to derail a nonjudicial foreclosure of her home. She did obtain a preliminary injunction, but on condition that borrower deposit $1,700 a month in a client trust account in lieu of a bond toward delinquent mortgage payments. Borrower did not make any payment, forcing lender to move ex parte but resulting in a denial ---albeit with stern warnings from the lower court that payments needed to be made and no “free house” was in the offing. After lender filed papers showing no payments had been made, the lower court dissolved the preliminary injunction so that the trustee’s sale could go forward. Borrower appealed, which the appellate court indicated effectively “stayed” the trustee’s sale.
The appellate court found that the appeal was frivolous, given nothing showed an abuse of trial court discretion in dissolving the preliminary injunction. Because the trustee’s sale was delayed for over two years with the help of counsel, the appellate court was not pleased with what happened. The bank did not ask for sanctions, but that did not end the matter. The appellate court ordered that bank would be awarded reasonable attorney’s fees on remand and the clerk of the reviewing court was ordered to send a copy of the opinion to the State Bar for consideration of possible discipline with respect to borrower’s appellate counsel (also borrower’s counsel at the trial level).