Laying the proper foundation is essential before one can begin building upon it. This applies to almost everything in life. It is no different in issues pertaining to foreclosure. Whether going on the offense or defense. When one desires to start building they need to make a determination as to what ingredients to use. Should I use straw or bricks? In a foreclosure action declaratory relief could be considered a brick and is a good start. A Declaratory judgment is a judgment of a court which determines rights of parties as well as establishing status quo. Unfortunately it is not used as much as it should be in this writer’s opinion. Many times this action will resolve some or all of the issues in the matter at hand. This determination refers to parties’ rights of issues presented.
Once this is done then one can proceed with injunctive relief. This type of relief can take place in many different forms such as temporary restraining orders, preliminary injunctions and permanent injunctions. Injunctive relief is a very powerful remedy that can be used in regards to a specific behavior. An injunction could be considered an equitable remedy in the form of a court order. Injunctions are orders that are made by the courts either restraining or requiring performance of a specific act in order to give effect to the legal rights of the applicant.
Among the elements which must be proven by the party seeking the injunction are: (1) it has no adequate remedy other than an injunction (such as money damages); (2) truly irreparable harm will occur in the absence of an injunction; (3) it is more likely than not that the moving party will prevail on the underlying merits when the matter ultimately goes to trial; (4) the benefit to the party seeking the injunction outweighs the burden of the party opposed to the injunction; and (5) the moving party’s right to the relief sought is clear.
Many times the courts have enjoined the trustee’s sale for a property with a presumed deficiency with an injunction prohibiting a sale.
en·join : as defined in the Merriam Webster Dictionary online
transitive verb \in-ˈjȯin, en-\
: to direct or order (someone) to do something
: To prevent (someone) from doing something; especially: to give a legal order preventing (someone) from doing something
We must strive to build a strong brick house and not a house built of straw which can be easily knocked down.
Respectfully, Joseph Esquivel
Mortgage Compliance Investigators Copyrighted© 2014