How do I get a temporary restraining order to hold the trustee’s sale?
August 12, 2022
By Site Producer Attorney & Retired Law Professor
How do I get a temporary restraining order to prevent the property from being sold? Note that these procedures may change as the court or technology evolves.
FIRST YOU SHOULD UNDERSTAND THAT CHANCES OF GETTING A TEMPORARY RESTRAINING ORDER IS EXTREMELY RARE.
If you apply for a restraining order, the court will require proof that the law has been broken.) After a “ex parte appearance,” a “Temporary Restraining Order” is usually obtained (an appearance in court by one party without the other being present). A Temporary Restraining Order is a court order that directs someone to refrain from doing something (in this example, completing the trustee’s sale).
A Temporary Restraining Order takes effect only after the Trustee has been served with notice and an opportunity to be heard by the Court.
The court will then hold a “Order to Show Cause” hearing so that both parties can explain to the court why a more “permanent” restraining order should or should not be issued. This is an excellent moment to give evidence that the Trustee has not provided you with the amount you need to stop the sale, but you must also show evidence that you have the funds to pay all of the overdue mortgage payments, plus fees and costs.
Temporary Restraining Orders are normally issued the same day they are requested and are in effect until the Order to Show Cause hearing.
The hearing on the Order to Show Cause is usually scheduled a few days later. A hearing can be held after the Temporary Restraining Order and Order to Show Cause have been served on the person who is to be restrained to decide if there is sufficient cause for the court to issue a more “permanent” restraining order. A court can compel the restrained person to refrain from performing specific activities (such as finalizing the trustee’s sale until they provide you with the needed information) based on the facts given at this hearing.
In very rare situations a Restraining Order might be in effect for a long time, even several years, after a hearing.
On the protected person’s request, the Restraining Order After Hearing can be renewed for consecutive periods of time, and its length may become permanent.
About the Author: Site Producer
Diane is a well respected Arizona bankruptcy and foreclosure attorney. As a retired law professor, she believes in offering everyone, not just her clients, advice about bankruptcy and Arizona foreclosure laws. Diane is also a mentor to hundreds of Arizona attorneys.
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