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I.5.

3 Memorandum in Support of Motion for


Temporary Restraining Order

DISTRICT COURT
______ COUNTY, COLORADO

[plaintiff]EMILY E. HOMEOWNER

[vs]

[defendant][Defendant 3] CORPORATION, and


[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]

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