Because nonjudicial foreclosures proceed outside of court, you’ll have to file a lawsuit to get a judge’s attention. And you’ll have the burden of proof because you want the judge to stop a proceeding—the foreclosure—that is already authorized by the mortgage or deed of trust. (To get an idea about how a typical nonjudicial foreclosure might proceed, see Typical Nonjudicial Foreclosure: Example.)
To get your day in court to challenge a nonjudicial foreclosure, you must file a lawsuit against the foreclosing party. In the lawsuit, you ask the court to enjoin (stop) the foreclosure proceedings until a judge can hear your reasons as to why the foreclosure shouldn’t proceed.
In this kind of lawsuit, you typically ask the court for three things, in this order:
• a temporary restraining order
• a preliminary injunction, and
• a permanent injunction.
Your application for a temporary restraining order (TRO) must convince the judge that you will suffer “irreparable injury” if the judge doesn’t stop the foreclosure immediately. Because you will lose your home if the foreclosure is allowed to proceed, most courts accept that a foreclosure causes irreparable injury.
TROs are typically granted without a formal notice or hearing, which means the foreclosing party may have only a day or two of notice in which to prepare a response. If no response is filed, the judge may well grant the TRO, but require you to post a bond to protect the foreclosing party from economic harm in case you lose the case down the line. A bond can be costly, assuming you can get one at all. You might be able to get the bond requirement waived if your income is low enough. The court may grant a waiver if any of the following is true:
Whether or not you’ll be able to get the bond requirement waived depends largely on if the court believes your claims have any merit.
The TRO will typically last until the date set for a hearing on whether the court should issue a preliminary injunction—which would stop the foreclosure pending a full trial on the matter.
At the preliminary injunction hearing, the court will review each party’s paperwork. At this hearing, the court must decide whether:
If the judge decides these issues in favor of the foreclosing party, the TRO will end, and your motion for a preliminary injunction will be denied. While you are technically allowed to continue with your lawsuit, the foreclosure will likely proceed in the absence of a preliminary injunction. Your only remedy at this point (and it’s a considerable long shot) would be to ask a higher court for an order (called a “writ”) overruling the lower court’s denial of the preliminary injunction.
But if the judge decides these issues in your favor, then the judge will issue a preliminary injunction. The preliminary injunction may order the foreclosing party to take corrective action—for example, by issuing a new payoff statement and giving you a chance to reinstate the mortgage. Or it may simply keep the TRO in effect.
Because it often takes a very long time to bring a case to trial on a permanent injunction, getting a preliminary injunction is pretty much equivalent to a victory for you. Typically, the foreclosing party will either attempt to reach a settlement with you (like by giving you a loan modification), drop the current foreclosure and begin from scratch, or meet any conditions laid down by the court and then go back into court to ask that the injunction be lifted.
The burden is on you to prove that the foreclosing party didn’t comply with state foreclosure laws or the terms of the mortgage. You meet this burden with the documents you file—typically, declarations or affidavits from you and various witnesses that establish the facts you believe entitle you to stop the foreclosure. For example, if you contest the accuracy or legality of the fees the foreclosing party required you to pay to reinstate the mortgage or other fees, you would attach a sworn statement to your application for a TRO or preliminary injunction, setting out the facts as you know them.
If the foreclosing party produces documents that contradict yours, then you will need to convince the judge at the preliminary injunction stage that you deserve to have the foreclosure put on hold until you can produce your full case at trial. Because most preliminary injunction hearings don’t involve live witnesses, your paperwork may have to carry the day.
You’ll most likely need to hire an attorney to be successful in fighting a nonjudicial foreclosure. Unless the lawyer thinks you have a very good case, it might not be worth the expense and effort. So, if you think you might want to fight a nonjudicial foreclosure in court, consider talking to a foreclosure attorney who can advise you about what to do in your particular circumstances.