What is the name of your state (only U.S. law)? Virginia.
I lost my house to an unlawful foreclosure in Jan 2011. At the time of foreclosure I had a pending case in the US District Court for the Eastern District of Virginia and my father was living with me and I also had a room mate. In Feb 2011 a Forcible Detainer was filed against me after receiving a 5 day notice. In March at the initial appearance the Judge scheduled a trial date of April 27th, 2011 after my room mate raised the argument that it was in violation of the Protecting Tenants at Foreclosure act and should have been given a 90 day notice before filing for eviction as stated in the law.
We retained counsel and on April 27th our lawyer and opposing counsel worked out a "settlement agreement" to vacate the property in approx 45 days because our counsel agreed that the court would deem that since 90 days has almost passed since the initial notice that that would count, and even though we disagreed with that reading of the law our lawyer told us that we would lose if we didn't accept it, so we did against our wishes because we were advised that it was our best result with a Writ of Possession to issue on June 23rd, 2011.
On May 3rd an appeals Court in Arizona (first appeals court to address the Protecting Tenants at Foreclosure Act) unanimously ruled that a 5 day notice and waiting 90 days is not equivalent to being given a 90 day notice (which is how we read the statute to begin with and raised to the judge in March) and we contacted our lawyer saying that this is exactly what we told him. He informed us that at the time he thought it was the best deal we could get and if we didn't like it we had 21 days to motion to the Court to amend the settlement agreement.
We took a couple days to write out and work on the verbage of the motion and went to submit it to the Court and when we filed it we were informed that our "settlement agreement" was entered in as a judgment and we only had 10 days from the entry to file a notice of appeal and we did not qualify for the 21 day amendment. We called the lawyer back saying that he told us it was a settlement agreement and not a judgment and he said that "we were splitting hairs and its practically the same thing." So we fired our lawyer (and am in the process of filing a malpractice suit against him because he gave us bad legal advice and did not make sure everything was entered as he told us it would be and refused to refund the retainer).
We filed a motion for rehearing, and it was denied on June 8th and the judge blatantly us that if we had a problem with the outcome of the case its something that needs to be addressed with the lawyer (suing him) and it really has nothing to do with the Plaintiff. Motions for rehearing are not appealable in Virginia.
So then we filed a motion to Set aside/vacate judgment on June 20th and also a motion to stay execution of the writ of possession on June 21st. On June 22nd the Court contacted us and told us we were on the calendar to appear before the judge on June 27th, 2011 @ 9 am for the motion to stay, but not the motion to set aside the judgment.
We appeared today and opposing counsel was upset because she said that she negotiated the settlement agreement (which was entered as a judgment) in good faith and now we are hiding behind motions to keep the property and she wanted a bond. The judge told her no and after 30 minutes he denied the motion to stay the writ but scheduled the Motion to set aside/vacate judgment for July 20th.
My two part question is why didn't he hear the motion today? And does a motion to vacate judgment automatically stay the execution of the writ. When we asked the judge if we have to move out before the 20th of July all he said was "I can't give you legal advice ask a lawyer". I looked in the Virginia Statutes and it does not address Motion to Vacate but in all the other states it says a Motion to Vacate automatically suspends a judgment until the motion has been disposed of.
I lost my house to an unlawful foreclosure in Jan 2011. At the time of foreclosure I had a pending case in the US District Court for the Eastern District of Virginia and my father was living with me and I also had a room mate. In Feb 2011 a Forcible Detainer was filed against me after receiving a 5 day notice. In March at the initial appearance the Judge scheduled a trial date of April 27th, 2011 after my room mate raised the argument that it was in violation of the Protecting Tenants at Foreclosure act and should have been given a 90 day notice before filing for eviction as stated in the law.
We retained counsel and on April 27th our lawyer and opposing counsel worked out a "settlement agreement" to vacate the property in approx 45 days because our counsel agreed that the court would deem that since 90 days has almost passed since the initial notice that that would count, and even though we disagreed with that reading of the law our lawyer told us that we would lose if we didn't accept it, so we did against our wishes because we were advised that it was our best result with a Writ of Possession to issue on June 23rd, 2011.
On May 3rd an appeals Court in Arizona (first appeals court to address the Protecting Tenants at Foreclosure Act) unanimously ruled that a 5 day notice and waiting 90 days is not equivalent to being given a 90 day notice (which is how we read the statute to begin with and raised to the judge in March) and we contacted our lawyer saying that this is exactly what we told him. He informed us that at the time he thought it was the best deal we could get and if we didn't like it we had 21 days to motion to the Court to amend the settlement agreement.
We took a couple days to write out and work on the verbage of the motion and went to submit it to the Court and when we filed it we were informed that our "settlement agreement" was entered in as a judgment and we only had 10 days from the entry to file a notice of appeal and we did not qualify for the 21 day amendment. We called the lawyer back saying that he told us it was a settlement agreement and not a judgment and he said that "we were splitting hairs and its practically the same thing." So we fired our lawyer (and am in the process of filing a malpractice suit against him because he gave us bad legal advice and did not make sure everything was entered as he told us it would be and refused to refund the retainer).
We filed a motion for rehearing, and it was denied on June 8th and the judge blatantly us that if we had a problem with the outcome of the case its something that needs to be addressed with the lawyer (suing him) and it really has nothing to do with the Plaintiff. Motions for rehearing are not appealable in Virginia.
So then we filed a motion to Set aside/vacate judgment on June 20th and also a motion to stay execution of the writ of possession on June 21st. On June 22nd the Court contacted us and told us we were on the calendar to appear before the judge on June 27th, 2011 @ 9 am for the motion to stay, but not the motion to set aside the judgment.
We appeared today and opposing counsel was upset because she said that she negotiated the settlement agreement (which was entered as a judgment) in good faith and now we are hiding behind motions to keep the property and she wanted a bond. The judge told her no and after 30 minutes he denied the motion to stay the writ but scheduled the Motion to set aside/vacate judgment for July 20th.
My two part question is why didn't he hear the motion today? And does a motion to vacate judgment automatically stay the execution of the writ. When we asked the judge if we have to move out before the 20th of July all he said was "I can't give you legal advice ask a lawyer". I looked in the Virginia Statutes and it does not address Motion to Vacate but in all the other states it says a Motion to Vacate automatically suspends a judgment until the motion has been disposed of.
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