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DS News Jan 2023

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Page 47 of 83

46 be dissolved, and the foreclosure can proceed, which often brings borrowers to the table to settle the litigation. e same factors cited above are required to obtain a PI. Generally, the lender's opposition will focus on the borrower's claims, arguing that the borrower is not likely to prevail on the merits of the claims. As a back-up argument, lenders gen- erally request a sizable bond as a condition of the PI. In many instances, the court will require that the borrower post a bond equal to the reinstate- ment amount and/or ongoing monthly payments. If the borrower cannot post the bond or make the monthly payments, the PI will dissolve. Note—if the TRO is granted for violations of California's Homeowner Bill of Rights, the borrower is also entitled to recover the attorneys' fees costs incurred in obtaining the TRO. Note—While the notice requirements are different in Federal Court, the standard and PI processes are similar. GENERAL TIPS FOR HANDLING TROS: As explained later in greater detail, the standard to obtain a TRO is substantially similar in most of the Western U.S., as well as the process to oppose the PI hearing. Below are some general tips to assist in handling TROs in most non-judi- cial foreclosure states: • Develop an internal process to expedite getting notice of a TRO from the SPOC or foreclo- sure trustee to the lender's legal team (or other decision maker) to immediately retain legal counsel to oppose the TRO. • If appropriate, have counsel immediately see if borrowers' counsel will agree to take the TRO off calendar in exchange for a short postpone- ment of the foreclosure sale. • If the TRO is granted, stop the foreclosure sale and, if lender has not already, retain appropriate counsel to oppose the PI request. • Work with litigation counsel to immediately settle the matter or oppose the PI request. • If the PI is granted, counsel should continue to look for opportunities to dissolve the PI throughout the litigation. Dissolving the PI will often bring the plaintiff/borrower back to the table to modify their loan and resolve the litigation. NEVADA Basic Requirements: Governed by NRCP 65, NRS 33.010, and case law, a borrower must: • Establish the: » Likelihood of success on merits. » Irreparable injury will result. » Provide notice is given. • Note—Notice is not required if immediate ir- reparable injury, loss, or damage will result before Notice can be given and contains an affidavit of the attorney re notice and to this effect. What if the TRO is Granted: If the TRO is granted without notice, a motion for preliminary injunction shall be set within 15 days in state court and 10 days in federal court. If the TRO was granted with notice, the court has greater flexibility in setting the PI hearing. In either event, the TRO will specify the hearing and op- position dates. Like in California, a PI, if granted, will enjoin the foreclosure for the duration of the lawsuit, potentially 1-2 years. e PI is the lender's opportunity to file a written opposition and argue against the issuance of a PI. ARIZONA Basic Requirements: Like in California and Nevada, Arizona requires that borrowers: • Establish: » A strong likelihood of success on the merits; » e possibility of irreparable injury if the requested relief is not granted; » A balance of hardships in their favor; and » Public policy favoring a grant of the injunction. • Notice to the Lender or foreclosure trust- ee. However, notice is not required if: (a) borrowers provide an affidavit or verified complaint with specific facts that clearly show that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition; and (b) the borrowers' attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. What Happens if the TRO is Granted: As with any TRO, the foreclosure process must stop. Fortunately, in Arizona, the TRO may not exceed 14 days. While a short TRO is generally good, it also shortens the time period for the Lender to hire counsel and file a written opposition. Again, the best opposition will generally involve showing the court that the borrower is not likely to prevail on the claims in the complaint. If that fails, a lender should push for a bond to protect it from damage caused by the issuance of the PI. HAWAII Basic Requirements: In Hawaii, the borrowers must also establish the following: • Likelihood of success on the merits; • Balance of irreparable damage favors the issu- ance of a temporary injunction; and • public interest supports granting an injunction. • ese factors are fluid and the more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of success on the merits. A TRO may be granted without written or oral notice if (1) it clearly appears from specific facts shown by affidavit or by the verified com- plaint that immediate and irreparable injury, loss, or damage will result to the borrower before the adverse party or that party's attorney can be heard in opposition, and (2) the borrower's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. What Happens if the TRO is Granted: As with any TRO, the foreclosure process must stop. However, in HI, a TRO may not exceed 10 days (unless extended) and the matter will be set for a hearing on motion for preliminary injunction. e court also has discretion to impose a bond as a condition for TRO or a preliminary injunction, so the lender should push for a bond to protect it from damage caused by the issuance of the PI. OREGON Basic Requirements: Oregon follows the federal 9th Circuit standards for a TRO rather than having its own standard. In considering whether to grant a TRO, the court will consider whether: 1. the moving party will suffer irreparable injury if the injunction is not granted; 2. the moving party will probably prevail on the merits; 3. in balancing the equities, the adverse party will not be harmed more than the moving party will be helped; and 4. granting the injunction is in the public interest. What Happens if the TRO is Granted: A court may grant a TRO without notice if the application clearly shows from affidavits or dec- Feature By: T. Robert Finlay, Esq. and the Team of Wright, Finlay & Zak, LLP

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