- Real Estate
How to file a preliminary injunction to try to stop foreclosure in California.
California Foreclosure Injunction Overview
The following are general guidelines I follow when filing for a TRO / Injunction in a California foreclosure civil action. Don’t forget to always check with the Court you plan to file suit in and ask if they have any special forms, rules, etc. This is not legal advice or a substitute for legal advice. Do not rely on this document as it may not be accurate for your situation.
Overview of Top 10 Steps to file for foreclosure injunction in California:
1. Get a hearing date from the court for an “ex parte application to stop a foreclosure.” Find out what days the Court hears these applications because you will have to give notice to the other party. Also see if there are any special procedures you need to follow. You should look up the Court's local rules.
2. Give advance notice of the TRO hearing to the relevant parties (ex. Bank, lender, loan servicer, trustee, etc.) that you intend to seek a TRO and Preliminary Injunction and give written notice of your Intent to record a lis pendens (a lis pendens is normally recorded with the county recorder's office after the lawsuit is filed).
3. Draft your civil lawsuit naming all of your causes of action. (ex. TILA rescission, RESPA, fraud, elder abuse, breach of HAMP modification contract etc.). Realize, you have to have good grounds to file a lawsuit and cannot file a lawsuit merely because you are late on your mortgage payments and were unable to obtain a loan modification or short sale. You should contact a real estate and foreclosure lawyer to discuss whether or not you have good faith grounds to file a lawsuit. Filing a frivolous lawsuit can have negative ramifications. Attach any exhibits to the complaint that you may need to attach (ex. Deed of Trust, Assignment of Deed of Trust, Notice of Default, Notice of Sale, Copy of a modification agreement, etc).
PRELIMINARY QUESTIONS:Do you have good grounds to file a lawsuit and do you have a plan to try to bring the loan current if the sale can be stopped?Remember, the lenders and loan servicers are never required to provide a loan modification, so you at least want to be ready to articulate a plan to the judge if he or she asks “why should I stop the sale if you are late on your mortgage.”Be ready for this.
TIP: make sure you have good legal grounds to file the lawsuit that you are basing your TRO on.You cannot file a lawsuit for the sole purpose of delay, and realize it is doubtful you will file a civil suit and get immediate results or a “quick settlement” since most financial institutions will hire a law firm and put on a legal defense.The firm will want to bill time from what I have seen and they are hired to win and will probably only settle if they see a weakness in their case.Your pleadings and arguments need to expose the weaknesses.
TIP: DON’T FORGET, IF YOU WANT TO STAY OUT OF FEDERAL COURT (THAT’S WHERE THE BANKS NORMALLY WANT TO BE IN MY OPINION), BE CAREFUL WHAT CAUSES OF ACTION YOU PUT IN YOUR COMPLAINT – FEDERAL CLAIMS LIKE RESPA AND TILA AND FDCPA ARE PRETTY SURE GROUNDS TO END UP IN FEDERAL COURT.I PREFER STATE COURT.WE HAVE A DISCLAIMER WE USE IN OUR COMPLAINT WHEN THERE IS NO DIVERSITY OF CITIZENSHIP TO TRY TO HELP US STAY INSTATE COURT. AGAIN, CONTACT A REAL ESTATE LAWYER TO CONTEMPLATE THE PROS AND CONS OF EXPOSING YOURSELF TO FEDERAL COURT. IF ALL OF THE DEFENDANTS ARE OUTSIDE THE STATE OF CALIFORNIA (I.E. THEY ARE LEGALLY INCORPORATED OUTSIDE OF CALIFORNIA OR HAVE THEIR PRINCIPLE PLACES OF BUSINESS OUTSIDE OF CALIFORNIA) THEN YOU HAVE DIVERSITY OF CITIZENSHIP AND THIS WILL ALLOW THEM TO REMOVE TO FEDERAL COURT ANYWAY.IF THIS IS THE CASE, YOU MAY WANT TO CONSIDER WHETHER OR NOT TO ADD YOUR FEDERAL CAUSES OF ACTION.BUT FOR ME, I HAVE ALWAYS TRIED TO FILE EVERYTHING IN STATE COURT, AND IF THEY REMOVE, SEE IF I HAVE GROUNDS TO CHALLENGE THE REMOVAL AND HAVE THE CASE REMANDED BACK TO STATE COURT.
4. Once the complaint is drafted you will need to fill out a summons and a local case cover sheet. You can find both of these at Judicial Counsel forms. Please note, there are some basic things you need to do when filling out these documents such as making sure the defendant's name on the complaint match identically to the name on the summons. If not, the Court will not issue the summons. Also, call the court to see if they require a "local case cover sheet" most don't but some do.
5. Once the complaint and summons and cover sheet is drafted, it is time to draft the TRO/OSC re Preliminary Injunction application (a sample TRO application can be found at Foreclosure Warrior). The TRO application is basically a pleading that asks the court to grant the TRO and gives the facts of the case and the legal reasons why the Court should enjoin the sale. There are several factors you will have to establish to convince the court you are entitled to a foreclosure injunction. The main one is to show that you are likely to succeed on the merits of your causes of action and that an injunction is legally allowed. To help make the case you will need a memorandum of points and authorities, along with declarations of the borrower/homeowner and a declaration that notice was given to the other parties. You are also allowed to submit a request for judicial notice (if you have evidence that the court should take notice of). There are special rules of the types of things a court is permitted to take judicial notice of (ex. recorded documents, documents from government websites, things beyond reasonable dispute, etc.).
6. Don't forget the "proposed order" for the judge to sign and the OSC (Order to show cause which has blanks for the judge to fill in the time and date the defendant must respond and show up to explain why a preliminary injunction should not issue. If the TRO is granted, you will have a very important hearing on whether or not you will get the preliminary injunction (this is the holy grail of foreclosure defense). Without a preliminary injunction, your house may be sold while you litigate your complaint out.
Note: there are specific legal requirements that you must adhere to and the judge may not be forgiving if you are skipping steps. This article is not an exhaustive and complete list of all the things you need to consider. Just a general overview of the steps involved. If you are not sure, pay a predatory lender or foreclosure lawyer to assist you. Don't be penny wise and pound foolish.
7. File all of your documents with the Court (as well as the filing fee – check with the Court on amounts due to file) and attend the TRO Court hearing (usually personal appearance is required and normally this is done on the same day you file everything). Argue for your injunction. Explain the situation, what the bank, lender, or loan servicer did that violated the law, and explain how you are likely to succeed on the merits of the causes of action that are enumerated in your complaint and explain how you will suffer irreparable harm if the injunction is not granted and how money damages will not make you whole for the loss of your house. Simple saying you don't know who your lender is, who owns the note, or that the lender won't produce the note or that you have a MERS loan will not likely win the day. The courts have heard the disgruntled loan modification client all to often, and these cases are normally losers.
8. Hopefully you get the TRO. If so, the Court will sign the TRO order and set a date for the preliminary injunction hearing. Yes, you will have to serve all the papers on the Defendant's along with a copy of the TRO and they will surely oppose you. So you will be coming back to court in roughly two weeks to argue for the preliminary injunction. Thank the judge and leave.
9. Next, go file the Lis Pendens with the County Recorder’s office (get a certified copy to be filed with the Court so there Court knows a lis pendens is filed). Keep a copy of all documents for yourself. Normally, I will personally serve all of the above described documents on the other defendants.
10. Prepare for your preliminary injunction hearing, again, usually a couple weeks after the TRO hearing. Sometimes you can extend this date by entering into a stipulation with the banks attorney once they appear. It may also be possible to do these injunction hearings on a "court call" but you will need to check with the Court Clerk on that. You should probably appear in person at any rate so that you can passionately plead your case. This is an exciting moment. With a strong argument, good facts, and well cited legal authority, you just may get your injunction that stops foreclosure of your home. The Court may also require you to post a bond, or to pay reasonable rental value so be prepared for that. I would make the bank, lender, or loan servicer make that argument though, because they may just forget to ask.
Good luck, Attorney Steve Vondran.
Copyright 2011 – The Law Offices of Steven C. Vondran, P.C. – All Rights Reserved. No re-transmission, re-distribution, or other use without express written consent.