ARGUING FOR THE PRELIMINARY INJUNCTION – WHERE THE RUBBER HITS THE ROAD. A FEW IDEAS IF YOU ARE ARGUING YOUR OWN CASE

THE LAW OFFICES OF STEVEN C. VONDRAN, P.C

WHEN YOU ARE TRYING TO SAVE YOUR HOME FROM FORECLOSURE, GENERALLY WHAT HAPPENS IS THERE IS A SALE DATE COMING UP QUICK.  FOR EXAMPLE, THE HOUSE WILL BE SOLD NEXT WEEK.

IN A PANIC, MOST PEOPLE TURN TO A FORECLOSURE DEFENSE ATTORNEY AND HAVE THE FORECLOSURE LAWYER LOOK AT THE CASE AND SEEK TO IDENTIFY WHAT TYPES OF CLAIMS YOU MAY HAVE THAT WARRANT THE FORECLOSURE SALE BEING STOPPED BY THE JUDGE: 

SOME POTENTIAL GROUNDS FOR SEEKING AN INJUNCTION FROM FORECLOSURE ARE:

1.  WRONGFUL FORECLOSURE - THE LENDER / TRUSTEE NO FOLLOWING STATE FORECLOSURE LAW REQUIREMENTS (EX. NOT MAKING THE PROPER NOTICE OF DEFAULT DECLARATIONS IN CALIFORNIA OR IMPROPER SUBSTITUTION OF TRUSTEE);
2.  TRUTH IN LENDING LAW (TILA) RESCISSION RIGHTS: INCLUDING EXERCISING THE EXTENDED THREE YEAR RIGHT TO RESCIND WHERE MATERIAL VIOLATIONS ARE UNCOVERED FOLLOWING A FORENSIC LOAN AUDIT);
3.  CALIFORNIA FOREIGN LANGUAGE CONTRACTS ISSUES:  THIS ARISES WHERE A LENDER TARGETS AND NEGOTIATES LOANS IN LANGUAGES OTHER THAN ENGLISH, BUT THEN PUTS THE LOAN DOCUMENTS IN ENGLISH.  THIS MAY CREATE A RIGHT OF RESCISSION UNDER CALIFORNIA CIVIL CODE SECTION 1632;
4. OTHER EQUITABLE GROUNDS: (EX. NOT KICKING ELDERLY CLIENTS WHO WERE STEERED INTO OPTION ARM LOANS ONTO THE STREET / UNCONSCIONABLE LOANS, ETC.)

THESE ARE JUST A FEW IDEAS, CONSULT A FORECLOSURE LAWYER TO ASSIST YOU IN IDENTIFYING OTHER POSSIBLE CLAIMS AND CAUSES OF ACTION THAT MAY APPLY GIVEN YOUR UNIQUE FACTS.

Anyway, we have discussed the Temporary Restraining Order (TRO) process in another blog post.  But generally speaking (at least in California) you seek the TRO first, and then 1-3 weeks later you seek PRELIMINARY INJUNCTION.   The TRO is just what it says it is “temporary.”  The Preliminary Injunction is the critical step in preventing foreclosure, for without an injunction (Court Order) to stop the sale there is usually nothing preventing the Trustee from conducting the auction and seeking to sell the property.

At any rate, THE PRELIMINARY INJUNCTION HEARING IS FOR ALL THE MARBLES.  You get it, you halt the foreclosure, you don’t get, your case may wind up being a case for money damages, but not saving your home from foreclosure.  Keep in mind, with judges these days hearing ALOT of foreclosure cases, if you are arguing your own case you may want to focus on creating a compelling presentation that will pique the interest of the judge.

I have a TRO / Preliminary Injunction hearing coming up.  Here are some Arguments I have been working on to try to persuade the judge that STOPPING THE FORECLOSURE SALE IS BOTH IN THE INTEREST OF JUSTICE AND REQUIRED BY THE LAW (if you have any good quotes please feel free to email me at steve@vondranlaw.com ):

1. Your honor, this is a WRONGFUL FORECLOSURE CASE………..I know you are probably hearing alot of these types of cases lately, but I think you will find this case at least a tad bit unique……..
2. In this case, my Client is an elderly gentlemen who was simply looking to refinance his property and get into a more affordable loan to take into account the fact that he was getting older and nearing retirement……(UNLIKE ALOT OF OTHER CASES YOU HAVE PROBABLY BEEN HEARING LATELY, MY CLENT WAS NOT TAKING CASH-OUT OR BUYING A HOUSE HE COULD NOT AFFORD – HE HAS LIVED IN THE HOUSE, AS HIS PRIMARY RESIDENCE SINCE ______) and until just a few months ago, given a financial hardship, he has always made his loan payments in full and on time.
3. Please keep in mind my Client was 68 years old at the time he was asked to sign the loan documents.  I do not state this fact to seek sympathy for my Client, but rather to point out that this fact makes my Client a “protected” senior under the Laws of the State of California……..
4. As a protected member of our society, the State of California imposes a special duty on parties who enter into financial transactions with elders and senior citizens, and even absent any legal requirements public policy in California demands that these seniors, (our elders), be treated fairly, honestly, and with respect.  Any decent society treats their aging with dignity and respect………….
5. My Client, however, did not get this level of treatment when dealing with _________ Bank at the time of the origination of this loan.  Instead of qualifying my Client to see what loan was financially best for him, he was literally “steered” and encouraged to sign the Adjustable Rate Mortgage at issue in this case.  An “ARM LOAN” as they call it.  That means his loan would be fixed for 5 years, and then become adjustable subject to the often unpredictable fluctuation in interest rates.  The loan was also an “interest-only” loan which means my Client would only be paying down the interest on the loan, and not the principle.  At some point in the future the interest-only feature would cease, and my Client would be obligated to pay both principal and interest on the loan, which for most folks results in “payment shock,” makes the home unaffordable, and leads to foreclosure.  This type of underwriting is false, deceptive, unfair, and when perpetrated against the elderly becomes malicious.
6. In addition, this was a “stated income loan,” – what they call the “liars loans.”  Now my Client is no liar, but the loan officer for ______ Bank, in taking the loan application, told my Client NOT TO WORRY about income figures…..that he would insert ____ thousand dollars per month as gross monthly income on the loan application, stopping only to ask: “does that sound about right?”
7. My Client had Credit Scores close to 700 which means he qualified for what’s referred to as the “prime interest rates.”  Instead of getting a great loan ____________ (insert) that took into account his financial condition and excellent credit history, instead he was “steered” by the representative of _______ bank into the toxic and highly predatory loan product known as the option arm loan.
8. THE REASON WE ARE HERE TODAY YOUR HONOR IS BECAUSE we are seeking this injunction to stop the scheduled foreclosure which is currently scheduled for ________, 2009, when my Clients property is scheduled to be sold right here in __________ County.
9. Your honor, as pointed out in our complaint (and application for preliminary injunction materials) the grounds for our injunction are as follows:

                       A.      WRONGFUL FORECLOSURE (NOT FOLLOWING FORECLOSURE LAWS / NO RESPONSE TO QUALIFIED WRITTEN REQUEST, IMPROPER SUBSTITUTION OF TRUSTEE, ETC.)

                       B.      (TILA EXTENDED THREE YEAR RIGHT TO RESCIND /  TENDER STRATEGY

  See our website at www.RescindMyLoan.net for more information about the Truth in Lending Foreclosure Defense Strategy.

MAKE YOUR EQUITY ARGUMENTS (EX. OPTION ARM LOANS ARE UNCONSCIONABLE AND SHOULD NOT BE ENFORCED  /  SENIOR CITIZENS WHO WERE STEERED INTO OPTION ARM LOANS SHOULD NOT BE FORCED INTO THE STREETS, ETC.)

See our website at www.OptionArmLawyer.com for more information about the the Option Arm Loan Foreclosure Defense Strategy.

Keep in mind, the negative amortization option arm loan is illegal in California per AB 260.

AB 260 bans negative-amortization loans where the principal loan balance keeps rising even though monthly payments are made.  An option-arm loan is basically one where the borrower is permitted to pay LESS than the INTEREST-ONLY amount on a loan.  Some people have referred to the Option Arm is a “subprime loan that is marketed to the entire public.”

1. ETC., ETC. LIST YOUR GROUNDS – THIS MAY BE YOUR LAST CHANCE TO ARGUE TO SAVE YOUR HOUSE.

WE TRULY BELIEVE WE WILL PREVAIL ON THE MERITS OF THESE CLAIMS.  WE HAVE FACTS, WITNESSES, AND LEGAL EVIDENCE WHICH WILL HELP US PROVE OUR CLAIMS.  IN ADDITION, THERE WILL BE NO HARM TO THE DEFENDANTS IF THE INJUNCTION ISSUES AND THEY CANNOT SELL THE PROPERTY UNTIL THE END OF THE LITIGATION.  THE HOUSE WILL ALWAYS BE THERE, AND THEY CAN FORECLOSE AT ANY TIME THE COURT DEEMS IT PROPER.  HOWEVER, THE DAMAGE TO MY CLIENT, IF THE FORECLOSURE SALE IS PERMITTED TO TAKE PLACE, IS DEVASTATING, IMMEASURABLE AND CANNOT BE REPAIRED BY MONEY DAMAGES.  ALL REAL PROPERTY IS UNIQUE.

IN CLOSING, I WOULD URGE THIS COURT TO AGREE THAT THE BALANCE OF EQUITIES FAVORS THE GRANTING OF THIS INJUNCTION AND WE HEREBY REQUEST SUCH TODAY.

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ANYWAY, THESE ARE JUST SOME IDEAS I AM WORKING WITH.  YOU WILL WANT TO USE YOUR OWN EXAMPLES THAT RELATE MORE SPECIFICALLY TO YOUR CASE.

MORE FORECLOSURE INFORMATION CAN BE FOUND AT WWW.FORECLOSUREDEFENSERESOURCECENTER.COM AND WWW.BKATTORNEYS.NET