Did you receive a Notice of Trustee's Sale in California? This article is intended to assist you with taking legal steps to force the bank to postpone or cancel the sale.
The technique, of which you may have heard, is called obtaining a temporary restraining order (TRO), which is usually also paired with a request for preliminary injunction. Many buyers hope for these remedies without understanding the timing and other requirements, which can lead to a denial of your application and loss of the home at the scheduled sale.
Process: An overview of the steps you must follow is below, though be sure to consult with an attorney for specific advice, as this article is not intended as legal counseling.
A Lawsuit must be filed: the first point many people do not realize is that in order to obtain a court order preventing sale, the judge must have jurisdiction over the bank and its agent, the trustee. This is only possible if a lawsuit has been filed against the defendant and jurisdiction is proper. Therefore, it is not wise to wait until the day before, or even the week before, your sale to begin this process, as it will take time to conduct the necessary investigation, legal research, and drafting, so you can file the complaint.
Check rules on hearing times, fees, notice etc.: litigants often make it through the process of filing their complaint, drafting their TRO application, and appearing in court only to learn that their specific county only allows these applications on Tuesdays. Therefore, if your sale is on Thursday, and you appear on Wednesday, you cannot be heard and will likely be foreclosed. Other mistakes include not checking the local rules regarding fees and filing, and showing up in the right department at the right time, but without having paid your fee. The notice requirement (including a statement in your declaration that you contacted the defendants and gave them sufficient warning of your application) also gets frequently overlooked.
Timing is fatally important: One cannot stress enough the importance of knowing how long things take, what the court days are, when you must give notice, and when your sale is, in order to schedule and time your moves. The sooner you start moving the better. Even if you have not received a Notice of Default, or fallen behind on your payments: when you see trouble on the horizon, take action!
Go to court: A necessary step is bringing your application to the court in person at the designated time- before the sale - and arguing for the application.
Serving the order: Many people assume that when they get an order from the court, the bank or trustee will automatically follow it. This is not the case. After filing the order, go straight to a fax machine and send it to the trustee and bank. If possible, the best practice is also to show up at the sale with your order in case there was a misfire.
Grounds: Not all applications will be approved. While the court is more lenient with a TRO as it is done on short notice, they will also set a hearing for a later date (approx. 21 days away) to have a full blown hearing on whether an injunction should enter.
Under Homeowners Bill of Rights: the HBOR, effective on January 1, 2013, prohibits the process known as "dual tracking" where you have a pending modification application but the bank proceeds with foreclosure nonetheless. If this is the case with your situation, the HBOR provides grounds for injunction.
Other wrongful conduct: If you have alleged quiet title, wrongful foreclosure, or robosigning of deeds, the court may also enter an injunction if it finds a likelihood of success on your claim. As such, it is necessary to file all your proof within the briefing period. This makes obtaining injunctions more difficult, but they are still possible.
Fair Market rental Bond REQUIRED: Note: it is MANDATORY that the court require a bond for the injunction - this will usually be fair market rent. If you are not willing and able to pay for this, you should reevaluate your strategy, and consider perhaps a short sale or other affordable remedy.
In sum, the most important piece of wisdom I can impart is the importance of timing. Secondly, look at the local rules to determine the technicalities of applying for a TRO IN YOUR COURT. Finally, it is a good idea to hire an attorney, and be prepared to begin paying fair market rental value for the duration of your case, if you wish to stay the sale for the entire case.
Michael Rooney is an attorney in San Francisco, California. He is a Bay Area foreclosure defense attorney practicing litigation and consultation including wrongful foreclosure, dual tracking, short sales, and foreclosure UD defense in San Francisco County, Alameda County short sales, Contra Costa County, Napa County, Santa Clara County, and San Mateo County California.