A Temporary Restraining Order can be issued without notice to the Defendants. If a foreclosure is ordered before a hearing, plaintiff will lose her ownership interest. Defendants are ordered to refrain from selling plaintiff's home at foreclosure.
Original Description:
Original Title
Memo in Support of TRO Where Servicer Failed to Review for HAMP Modification
A Temporary Restraining Order can be issued without notice to the Defendants. If a foreclosure is ordered before a hearing, plaintiff will lose her ownership interest. Defendants are ordered to refrain from selling plaintiff's home at foreclosure.
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A Temporary Restraining Order can be issued without notice to the Defendants. If a foreclosure is ordered before a hearing, plaintiff will lose her ownership interest. Defendants are ordered to refrain from selling plaintiff's home at foreclosure.
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as DOC, PDF, TXT or read online from Scribd
[Defendant 2] MORTGAGE, INC., and [Defendant 1] MORTGAGE, and [Trustee] ______ COUNTY PUBLIC TRUSTEE
MEMORANDUM AND BRIEF IN SUPPORT OF MOTION FOR TEMPORARY
RESTRAINING ORDER
NOW COMES the Plaintiff, Emily E. Homeowner, by and
through counsel, pursuant to Colo. R. Civ. P. 65(b), and submits this Memorandum in support of his Motion for Temporary Restraining Order. In support of her request, Plaintiff states the following:
I. PLAINTIFF SATISFIES THE REQUIREMENTS FOR ISSUANCE OF A
TEMPORARY RESTRAINING ORDER WITHOUT NOTICE TO THE DEFENDANTS
Rule 65(b) of the Colorado Rules of Civil Procedure
provides for the issuance of a restraining order without written or oral notice to the adverse party or his attorney if “(1) [i]t clearly appears from specific facts shown by affidavit or by the verified complaint or by testimony that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing or on the record the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required.” Colo. R. Civ. P. 65(b).
A. PLAINTIFF WILL SUFFER AN IMMEDIATE AND IRREPARABLE
INJURY IF HER HOME IS FORECLOSED BEFORE A HEARING ON HER MOTION FOR PRELIMINARY INJUNCTION Plaintiff will permanently lose her ownership interest in the subject property unless Defendants are ordered to refrain from selling Plaintiff’s home at foreclosure pending a hearing and resolution of Plaintiff’s Complaint. The loss of their home would be devastating to Plaintiff and her two children, as detailed in the accompanying Affidavit. First, Plaintiff would lose the equity she has built in her home. Second, Plaintiff and her children would be without a place to live, and Plaintiff fears difficulty securing an affordable rental. This hardship is particularly severe for Plaintiff’s daughter, who has undergone the trauma of sexual abuse by her father and would be unusually harmed by further upheaval.
B. EFFORTS HAVE BEEN MADE TO GIVE NOTICE TO DEFENDANTS OF
PLAINTIFF’S CLAIM
Undersigned counsel has spoken with counsel for
[Defendant 3] Corporation in the instant foreclosure proceeding, [Attorney] of [Firm], and notified him of the imminent filing of Plaintiff’s claim. Counsel first wrote to [Attorney] on October 16, 2009, requesting that his client voluntarily suspend the sale pending HAMP compliance. [Attorney] indicated by letter of October 23, 2009 that he had sought instruction from his client regarding whether to postpone sale. Counsel then contacted [Attorney] by fax on October 27, 2009 to inform him that this lawsuit would be filed if his client did not voluntarily forestall sale by 5:00 p.m. on October 28, 2009. [Attorney] notified counsel in the afternoon that his client would be unlikely to meet that deadline, and nothing further was received by 5:00.
In addition, [Attorney] stated in his letter and in
person that his client was in contact with its servicer, [Defendant 2], regarding Plaintiff’s modification request. Accordingly, counsel believes that [Defendant 2] is also on notice of Plaintiff’s claim. Further notice should not be required due to the extremely urgent timeline involved.
Respectfully submitted, [Attorney for Plaintiff] [Date]