We work with borrowers to find solutions to avoid foreclosures. These options include loan modifications, short sales, temporary restraining orders, chapter 7 bankruptcy, chapter 13 bankruptcy, and finding investors willing to purchase your home for cash.
It should be noted that our sole focus is helping you retain your home, and we are not a debt counseling agency. As such, we only work with individuals who own a home that they are in danger of losing because of financial or other difficulties. If you are looking for general assistance with formulating a plan to pay off credit card or other debts, we would recommend you reach out to a credit counseling service, such as Consumer Credit Counseling Service (CCCS), which is a non-profit credit counseling service.
What is a Trustee Sale TRO?
A trustee sale TRO is a temporary restraining order from a court that prevents a trustee from selling a property as a result of a default on the loan. The TRO is temporary and will not prevent the sale forever, but it can be used in circumstances where the borrower needs a little more time to catch up or satisfy the loan and has a documented way to do so. The most common example is when the property is under contract to be sold for more than the debt owed, but the buyer needs time to complete inspections, obtain a title report, etc.
The key to seeking a TRO is that there must be a positive in it for the lender. In other words, if you are seeking to postpone a foreclosure to sell the property for less than what is owed, the lender is not going to agree and the court is far less likely to enter the order. Moreover, if you request a TRO but don’t have a plan to catch up the loan or pay the lender off, it is very unlikely that the court will grant the request. As such, TROs are used for special circumstances and are not available to all borrowers.
Can I Obtain a TRO in Kansas?
No, not as it relates to stopping a foreclosure sale. The difference between Kansas and Missouri is that Missouri is a non-judicial state. That means that the trustee (and individual or attorney selected by the bank) can sell the property when the borrower is behind without going to court. These sales do usually take place at the courthouse steps but the court is otherwise not involved and does not approve the sale of the property. Moreover, the sale can take place in as little as 21 days from when you receive notice of the sale.
In contrast, Kansas is a judicial foreclosure state. This means that the sale cannot take place until after the lender has filed suit against you, obtained a judgment, and received an order from the court directing the sheriff to sell the property. This takes several months, and sometimes years, for the lender to complete.
Because a Kansas foreclosure has already gone through the court system, the borrower has already had an opportunity to object to the sale. Therefore, there is no legal basis for requesting a TRO. This is different from Missouri where the sale can take place without the borrower having an opportunity to object to it.
Why Use Rick Davis Real Estate to Obtain a TRO?
Rick spent the beginning years of his career representing some of the largest banks and mortgage servicers in the country. Moreover, he worked on site at two major servicers. As such, Rick has an inside knowledge of how these banks work and has contacts throughout the lending industry. This experience helps him to understand what is and is not an acceptable request for a continuance and when the court is more likely to grant a trustee sale TRO. Moreover, Rick has contacts within many of the area’s foreclosure law firms, making it easier to reach agreements on continuing sales without going into the court room.
How do I Know a Trustee Sale TRO is the Right Option for Me?
We want you to know the right foreclosure avoidance strategy for your situation. There is a lot of misinformation on the internet and it can be hard to get straight and understandable answers from your lender. Therefore, before we embark on any foreclosure avoidance strategy for our clients, we will walk you through a process that helps evaluate your situation, your goals, and what the best option is for you. Below is an overview of this on-boarding process.
As we walk through this process, you will have access to an iPhone, Android, and web app that tells you exactly where we are in the process and what the next steps look like. You can learn more about this app by going to the Case Status page on our website.
Introductory Phone Call
This is a short introductory phone call to briefly discuss your situation, the options available and what the process looks like when trying to avoid foreclosure. Because it requires a deeper dive into your finances and circumstances, this conversation will not be for the purpose of determining what option to pursue, but rather is for a general overview and determining if we would like to move forward with the next steps.
At this point in the process, we ask that you take the time to complete our foreclosure avoidance intake form. This form will take about an hour or so to complete and will require you to upload relevant documents, such as paystubs, bank statements, and other relevant documents. Therefore, it is recommended that you complete this form when you have some time and are in front of a computer. You can save and return to the form if you need to obtain additional information or just want a break.
In order to determine the right options for you, we will have to do an in-depth review of your loan, finances, and circumstances. Therefore, we ask that before we proceed to the next step that you make a deposit of $250. This deposit will be placed in the firm’s trust account. If you elect not to proceed following the strategy session, the deposit will be paid to the firm as compensation for the time spent reviewing your information and options. If you elect to proceed with a foreclosure avoidance option, the deposit will be applied to the amounts owed for additional services.
During this phase we will review the information that you provide through the intake form and will help to determine the best option or options for you to avoid foreclosure. Because this is an in-depth review, this stage may take up to a week. With that being said, if a Missouri trustee sale is imminent, we will expediate this review as is appropriate.
Foreclosure Avoidance Strategy Session
At this point in the process, we will schedule a time to talk with you about the results of the review and the various options available to you. We will discuss the pros and cons of each option, including the effects on your credit, likelihood of success, and costs involved. At the conclusion of this discussion, we will have a plan in place for moving forward with your custom foreclosure avoidance plan.
Sign Representation Documents
Once we have a plan in place, we will send you the appropriate representation documents, which depending on the plan agreed upon may include a lawyer retainer agreement, broker listing agreement, and other third-party authorizations.
What Does the TRO Process Look Like?
Although the process may vary for each lender, the basic overview of the trustee sale TRO process is as follows.
Contact Lender’s Attorney
The first step in the process of stopping the sale of your home using a TRO is to contact the lender’s attorney. We have relationships with many of the areas foreclosure firms, and in some instances, we can get the lender to agree to continuing the sale without the need to file any legal action. When this is most likely to occur is when you have a contract to sell the property that will pay off the entire amount owed to the lender. With that being said, even if you don’t have a contract, we will still contact them to see if we can avoid going through the full process.
The next step in the process is to draft the paperwork to be filed with the court to seek a temporary restraining order. This will include a petition, application for temporary restraining order, draft temporary restraining order, and motion for a private process server.
You will need to sign the petition to verify that the facts contained in the petition are correct. It will also need to be notarized. You can do this at any notary that is convenient to you or you can schedule a time to come by our office.
Once we have received all of the signed documents from you, we will file the petition with the court asking the court to postpone the sale. The court will generally schedule a hearing on the motion, which sometimes can be avoided through an agreement with the lender’s attorney. With that being said, if the lender does not agree, we will attend the hearing on your behalf and argue in favor of the petition.
If the court schedules a hearing on our request for a TRO, we will be required to show the court that you will be harmed by allowing the sale to go forward as scheduled. The burden is not as high as a trial, but it is still difficult. This is why it is important to have an attorney experienced in these matters represent you at a TRO hearing.
Restraining Order Issued
If we are successful at the TRO Hearing, the judge will enter the temporary restraining order postponing the sale. Please note that the TRO will require you (or the buyer of your property) to post a bond, which can be anywhere from $1,000 to the full value of the property. Many times we can avoid posting the bond by negotiating with the lender’s attorney; however, please be prepare to post a bond if necessary.
Once the TRO has been entered, the sale will be postponed. At that point, our next step is to see if the lender will agree to a mutual continuance so the case can be dismissed. In most instances, they will do so. The condition on the continuance; however, is that you agree that the sale will go forward on the new date and that you will not attempt to stop it again. There is little downside to this, however, as a court is unlikely to grant a second TRO on the same foreclosure. Moreover, the lender may also require that you waive the right to sue the lender for anything related to the foreclosure.
What are the Costs for Seeking a Trustee Sale TRO?
In order to determine the right options for you, we will have to do an in-depth review of your loan, finances, and circumstances. Therefore, we require an initial deposit of $250 prior to the review of your documents and information submitted through our intake form. This deposit will be placed in the firm’s trust account. If you elect not to proceed following the strategy session, the deposit will be paid to the firm as compensation for the time spent reviewing your information and options. If you elect to proceed with a foreclosure avoidance option, the deposit will be applied to the amounts owed for additional services.
If you engage Rick Davis Real Estate Law to seek a TRO on your behalf, you will be charged an additional $1,600. These fees are earned once the lender agrees to a continuance or the TRO application is filed. In other words, the fees are owed whether or not the sale is continued as while we commit to work our hardest, we can not promise any certain outcomes.