Did you receive a Notice of Trustee Sale in California? This article is intended to help you take legal action to force the bank to postpone or cancel the sale.
The technique, which you may have heard of, is called obtaining a temporary restraining order (TRO), which is also usually combined with a request for a preliminary injunction. Many buyers wait for these remedies without understanding the timing and other requirements, which can lead to a denial of their application and loss of the home at the scheduled sale.
Process – Below is an overview of the steps you need to take, but be sure to consult an attorney for specific advice as this article is not intended as legal advice.
A Lawsuit Must Be Filed: The first point that many people don’t realize is that in order to get a court order preventing the 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 the jurisdiction is suitable. 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 do the necessary research, legal research, and writing, so that you can file the complaint.
Check the rules about hearing times, fees, notice, etc. – Litigants often go through the process of filing their complaint, writing their TRO request, and appearing in court only to learn that their specific county only allows these requests on Tuesdays. So if your sale is on Thursday and it shows up on Wednesday, you can’t be heard and it’s likely to be closed. Other mistakes include not checking local rules regarding fees and filing, and showing up at the right department at the right time, but not having paid your fee. The notice requirement (including a statement in your declaration that you contacted the defendants and gave them sufficient notice of your request) is also frequently overlooked.
Timing is fatally important: one cannot stress enough the importance of knowing how long things take, what the short days are, when to give notice, and when your sale is, to schedule and time your moves. The sooner you start moving, the better. Even if you haven’t received a default notice or have fallen behind on your payments: When you see trouble on the horizon, take action!
Going to Court – A necessary step is to file your application with the court in person at the designated time, prior to the sale, and argue in favor of the application.
Serving the Order – Many people assume that when they receive an order from the court, the bank or trustee will automatically follow it. This is not the case. After you file the order, go directly to a fax machine and send it to the trustee and the bank. If possible, best practice is also to show up at the sale with your order in the event of a misfire.
Reasons: Not all applications will be approved. While the court is more lenient with a TRO, since it is done on short notice, it will also set a hearing for a later date (approximately 21 days) to have a full hearing on whether to enter an injunction.
Per the Homeowners Bill of Rights: HBOR, effective January 1, 2013, prohibits the process known as “dual-follow” where you have a pending modification application but the bank proceeds with foreclosure in any case. If this is the case with your situation, HBOR provides grounds for the court order.
Other Unlawful Conduct: If you have a suspected silent title, unlawful foreclosure, or automatic signing of deed, the court may also enter an injunction if it finds a likelihood of success on your claim. As such, you need to submit all of your evidence within the reporting period. This makes it more difficult to obtain court orders, but they are still possible.
Fair Market Rental Bond REQUIRED: Note: It is REQUIRED that the court require a bond for injunctive relief; it will generally be a fair market rent. If you are unwilling and unable to pay for this, you should re-evaluate your strategy and perhaps consider a short sale or other affordable remedy.
In short, the most important wisdom I can impart is the importance of time. Second, look at your local rules to determine the technicalities of filing for a TRO IN YOUR COURT. Finally, it is a good idea to hire an attorney and be prepared to start paying fair market rental value for the duration of your case, if you want to keep the sale going throughout the case.