| In nonjudicial foreclosure states, mortgage companies | | | | It may be quite simple to get a Temporary |
| do not have to bring a lawsuit against homeowners in | | | | Restraining Order against a mortgage company, since |
| order to sell the house at a county auction. If the | | | | the basis for granting one is that the party |
| borrowers believe that the foreclosure is not | | | | requesting it would suffer "irreparable injury" if it was |
| warranted, they will have to bring a lawsuit | | | | not granted. Losing a home to foreclosure is usually |
| themselves against the bank and prove that the | | | | accepted as irreparable injury to homeowners, but |
| house should not be sold. Obviously, this makes | | | | this action usually only puts the foreclosure on hold |
| defending the lawsuit impossible, as the owners | | | | for a period of a couple weeks, at most. |
| would have to bring the fight into court first and the | | | | However, some courts may require that |
| bank would be on the defensive. | | | | homeowners post a bond for the TRO to be |
| But bringing a lawsuit against a lender to stop | | | | granted, and if the bond is prohibitively expensive, it |
| foreclosure can be a costly and confusing process for | | | | can hurt the borrowers' chances of getting a fair |
| most homeowners. They will have to follow a | | | | hearing in court. The bond is designed to protect the |
| number of steps just to have the sale initially halted, | | | | bank against economic harm if the owners do not |
| and then attempt to prove that the foreclosure | | | | have any legitimate reason to request that the |
| should not be allowed to go forward at all. This | | | | foreclosure be halted, and they can be costly, in |
| involves bringing a lawsuit, getting a temporary | | | | some instances. |
| restraining order, posting a bond, getting a preliminary | | | | Thankfully, homeowners who have suffered a |
| injunction, and finally getting a permanent injunction | | | | financial hardship may be able to get the bond |
| against the bank. The first few steps will be | | | | requirement waived. Having low income is one |
| examined in this article. | | | | convincing argument for a waiver. But borrowers will |
| This is almost certainly an area of the law in which | | | | also have to show that the lender will not suffer |
| homeowners would wish to hire an attorney to | | | | unreasonable harm if the foreclosure is delayed, or if |
| represent them or, at the very minimum, have | | | | it can be protected some other way (like if the |
| attorneys do research to help them build their case. | | | | owners make reasonable monthly payments while |
| Unfortunately, though, foreclosure situations are one | | | | the lawsuit is ongoing). Also, if the validity of the |
| of the times in most borrowers' lives where they can | | | | mortgage is in question, a waiver may be granted. |
| least afford to hire a personal lawyer. Bringing a | | | | Banks suffer no harm as a result of the |
| lawsuit initially against a bank will be an in-depth | | | | homeowners' actions if the mortgage is not valid in |
| process, and doing only the first few steps may only | | | | the first place. |
| result in a delay of a few weeks. | | | | Once homeowners are granted a TRO and have |
| To begin the lawsuit against the mortgage company, | | | | their bond requirement waived by the court, the |
| homeowners must sue both the lender and the | | | | next step will be getting a preliminary injunction |
| trustee. They must also request that a judge stop | | | | against the bank. If this is granted, the homeowners |
| any foreclosure proceedings until the homeowners | | | | may have already won the war, as the rest of the |
| are able to argue why they should not be allowed to | | | | legal process may take several years. But the final |
| go forward at all. The first step will be to request | | | | step would be to obtain a permanent injunction, |
| that the court grant the owners a Temporary | | | | which would not allow the lender to pursue |
| Restraining Order against the lender, barring it from | | | | foreclosure against the house. |
| moving ahead with the foreclosure. | | | | |