STOP THE SALE! USING THE ORDER TO SHOW CAUSE TO GET A TRO
CAN I STOP THE SALE?
If a foreclosure sale or auction has been noticed for an upcoming date, the homeowner may still have options to stop the sale and protect the property. Bankruptcy is one option. Lanin Law P.C. handles Chapter 13 filings for homeowners. You can read more here. One non-bankruptcy option is to seek a “stay” or temporary restraining order to enjoin the lender from proceeding with the sale. The temporary restraining order or stay is also referred to as a TRO. The homeowner’s attorney must be careful to also seek to stay the Court-appointed referee from conducting the sale. The referee has no real stake in the case or the sale but must be notified and stayed just the same. The mechanism used to obtain a TRO is the order to show cause, which is an emergency motion that gets filed with the court. Counsel must notify the lender’s attorney at least 24 hours in advance so that both attorneys have a reasonable opportunity to meet in court at the ex parte office and argue for or against the TRO before the Judge who is hearing emergency motions that day. Sometimes, the lawyers will argue (discuss) the merits with the Judge’s Law Secretary (an attorney). There must be grounds to stay the sale. One example might be that the homeowner was never served with the summons, in which case the homeowner will also want to move to vacate the default in the case.