Frivolous use of appellate proceedings to avoid the inevitable

                The real estate market has produced many casualties.  Of course, when we were in the midst of the real estate bubble, we were all delighted to buy houses we couldn't afford and speculate on dreams of reselling at a huge profit.  I can remember when my agent took me to see my current home.  It hadn't even been listed and was being previewed by realtors.  "Let's see," I said, "I have Thursday available."  She responded, "I will be there in 45 minutes to pick you up."  Those were the days when buyers were making offers within a day of the house being on the market.  Any delay meant the house was gone.   But those days are gone and we are now suffering with houses that are upside down and we cannot even give them away.

                In Brown v. Wells Fargo Bank (2012) 204 Cal.App.4th 1353, the appellant and plaintiff was in default on her $480,000 mortgage.  Wells Fargo instituted foreclosure proceedings and the appellant filed a lawsuit, including requesting a preliminary injunction, to prevent the sale.  She then appealed from the court's order dissolving a preliminary injunction and allowing the sale to go forward.  Why, you might ask?  Well, it seems she failed to deposit $1,700 a month into a trust account in lieu of a bond as ordered by the court.  No, she had not made a single payment.  And she filed her notice of appeal two days before the property was scheduled to be sold.

                Appellant argued the order dissolving the injunction was invalid because it was issued "ex parte."   After calendar notice of oral argument was sent to appellant's attorney, he asked that the appeal be dismissed.  In her opening brief, appellant ignored the fact the trial court agreed to set the matter for hearing.  She made no showing the trial court abused its discretion nor did she show any miscarriage of judgment.

                The court noted, "The appellate courts take a dim view of a frivolous appeal.  Here, with the misguided help of counsel, the trustee's sale was delayed for over two years.  Use of the appellate process solely for delay is an abuse of the appellate process."  (Id. at pp. 1356-1357.)  It further held the appellant had not presented any viable issue on appeal and the appeal was frivolous as a matter of law.  It concluded, "'[R[espondent is not the only person aggrieved by this frivolous appeal.  Those litigants who have nonfrivolous appeals are waiting in line while we process the instant appeal.'"  (Id. at p. 1357.)

                The appellant was fortunate in that respondent did not ask for monetary sanctions and the court did not issue an order to show cause re sanctions payable to the court.  It did, however, deny appellant's request to dismiss the appeal, awarding respondent costs on appeal.  It also awarded attorney's fees if there was a provision for them in the note or deed of trust.  Finally, it ordered the clerk of the court to send a copy of the opinion to the State Bar for consideration of discipline.  Ouch!