Tooele is a city in Tooele County in the U.S. state of Utah. The population was 22,502 at the 2000 census, and 32,115 at the 2010 census. It is the county seat of Tooele County. About 30 minutes southwest of Salt Lake City, Tooele is known for Tooele Army Depot, for its views of the nearby Oquirrh Mountains and the Great Salt Lake. According to the United States Census Bureau, the city has a total area of 21.2 square miles (54.8 km²), of which 21.1 square miles (54.8 km²) is land and 0.04 square miles (0.1 km²) (0.09%) is water. Tooele is located on the western slope of the Oquirrh Mountains in the Tooele Valley, the next valley west of the well-known Salt Lake Valley. Many popular camping and picnic areas surround the city. The unusual name for the town is thought by some to have evolved from an old Ute Indian word for tumbleweed. This is one of many unverified explanations, as the name’s usage predated the introduction of the Russian thistle to the United States. Other explanations include that the name derives from a Native American chief, but controversy exists about whether such a chief existed. Others hypothesize that the name comes from “tuu-wiita”, the Goshute word for “black bear”, or from “tule”, a Spanish word of Aztec origin meaning “bulrush.”
How to Stop Foreclosure With a Temporary Restraining Order
The best way to temporarily stop a foreclosure up to the day before an auction, and when a homeowner does not need to otherwise declare bankruptcy, may be to file a Temporary Restraining Order (TRO). A TRO is a legal order filed by an attorney on behalf of a homeowner against their lender. In most cases, it will result in a brief delay (30 days, give or take) of a foreclosure auction – which may provide enough time for a homeowner to sell a home using other strategies or catch up the payments. TROs are a legal specialty; you must have an attorney with this specialty lined up in advance if you need to utilize this maneuver.
The advantage of a TRO is that it can be done at the last minute just before the home is actually auctioned off by the lender. In addition, it does not require the homeowner to declare bankruptcy and thus often both a bankruptcy and foreclosure can be avoided. Once the TRO is filed, the auction is stopped or nullified until the lender has the TRO lifted.
The disadvantage to filing a TRO is that it costs money and is only a temporary delay.
How Do I File a Motion to Stop Foreclosure?
If your lender intends to foreclose on your house, you have the right to fight it in court. In a judicial foreclosure, your lender must file a lawsuit to foreclose; if you file in response, you’ll be allowed to make your case before a judge. In non-judicial foreclosure the norm in several states, such as Utah–the lender doesn’t need court approval. You can still get your day in court, but only if you file a lawsuit to prevent foreclosure.
• Ask the county clerk for information on the specific forms and fees your county requires. Each county may have its own legal paperwork, the Utah court system’s website states, and each county sets its own schedule of fees you have to pay to file.
• File the paperwork, including a request for a temporary restraining order. A TRO, will stop foreclosure until the judge hears your case. If your lender doesn’t respond, the judge will probably approve the TRO, but you may be asked to post a bond against any financial damage this causes the lender.
• Serve papers on the lender. Someone 18 or older who isn’t involved in the case must present papers to the lender notifying it of the lawsuit, and return a “proof of service” to you. The case won’t proceed until the lender is formally notified you’ve sued.
• Ask for a preliminary injunction when you get your court hearing. If the judge grants the injunction, he’ll stop the foreclosure until the case is decided. The judge will issue the injunction if she believes there’s a good chance you’ll win, and if the damage you’ll suffer from foreclosure is greater than your lender suffers by delaying foreclosure. If the judge doesn’t issue the injunction, then the foreclosure clock resumes ticking.
• Present your defense. Valid defenses include that the lender made a mistake, such as crediting your payments to the wrong person; that it engaged in unfair lending practices; or that it made major procedural errors. The same defenses can be raised in judicial foreclosures.
How Foreclosure Delaying Services Work
Struggling homeowners who want to keep their homes have several options for delaying foreclosure. As the number of foreclosures nationwide increased during the housing market collapse, more foreclosure delay or “home retention services” and companies came into existence. Foreclosure delay services use every legal means, including filing lawsuits, to put off a homeowner’s foreclosure for as long as possible. With enough time, a homeowner in foreclosure may be able to stop the process.
Judicial foreclosure is the other form of foreclosure employed by lenders. In judicial or court-facilitated foreclosures, foreclosure delay service attorneys work to delay foreclosure cases using procedural challenges. Typically, foreclosure delay service attorneys first file written answers for their clients, which can buy an additional 30 to 60 days. They also file for continuances or time to prepare foreclosure defenses for their clients. Judges frequently grant these types of continuances.
Legal challenges to foreclosure cases filed by lenders are common delaying tactics. Legal challenges in foreclosure cases include for jurisdiction, especially when out of state lenders are involved. Foreclosure delay service attorneys challenging lenders over jurisdiction usually request that county courts move those cases to the federal courts. Lawyers also can challenge a lender’s legal standing by forcing the lender to prove it actually owns the loan.
Buying Homeowners Time
Foreclosure delay services are exactly that — and they don’t generally get foreclosures canceled altogether. They can buy critical time for homeowners facing imminent foreclosure to find workable foreclosure alternatives. With enough time, a homeowner facing foreclosure could line up mortgage reinstatement funding using state-offered grants, for example. Foreclosure delay also can give struggling homeowners enough time to find buyers or at least an alternative living arrangement.
Though it can be a drastic measure, filing for bankruptcy can delay an active foreclosure case. Both Chapter 7 liquidation and Chapter 13 reorganization bankruptcy feature automatic stays that halt all creditor collection activities, including foreclosure sales. Using Chapter 13 bankruptcy, a homeowner could even permanently halt foreclosure using a three- to five-year repayment plan. During Chapter 13 bankruptcy’s repayment period, delinquent mortgage payments plus lender foreclosure costs can be gradually repaid and mortgages reinstated.
How to Postpone a Trustee’s Auction
When discussing real estate, auctions are referred to as a “trustee’s auction” or “trustee’s sale date.” To postpone this sort or auction, the borrower must first be in default—meaning the borrower is not making mortgage payments. Borrowers who stop making mortgage payments will sooner or later cause the bank to foreclose. How that foreclosure is handled depends on state law, but more than half of the states in the U.S. are trust deed states, and the trustee handles foreclosures. Fannie Mae short sales that are in default are handled differently; Fannie Mae and Freddie Mac do not ordinarily postpone trustee’s auctions.
After a borrower stops making the mortgage payments, the lender notifies the trustee to initiate foreclosure proceedings. The trustee is a third party to the trust deed, a position some call “holding a naked title.” Although there is no required period before filing a Notice of Default, most lenders prefer to try to collect during the first 60 to 45 days that a borrower falls into arrears, rather than jump into foreclosure proceedings. Some states such as California require the lender to give the borrower at least 30 days’ notice before filing a Notice of Default. Once the Notice of Default is filed, a borrower has 90 days to reinstate the loan by making up the back payments and paying late charges, which include the trustee’s fees. There are a few methods that can be used in postponing an auction.
Redeem the Mortgage
Although people refer to reinstating a mortgage and redeeming a mortgage interchangeably, they are different. To redeem a mortgage is to pay off the mortgage; reinstating requires bringing the mortgage current. During the final days of a non-judicial foreclosure process, a lender is not required to accept a reinstatement but must allow a redemption.
Apply for a Loan Modification
Lenders are also not required to postpone an auction in exchange for a loan modification, but most banks will try to work out a temporary repayment schedule. This does not mean the bank will not send the home to auction, so be careful; borrowers may want to ask the bank for a written promise not to move forward with the auction. If accepted, banks will grant a temporary loan modification, and after three to six months, tell the borrower they are filing foreclosure because the borrower does not qualify for a permanent loan modification.
File for Bankruptcy
A bankruptcy filing does not permanently stop an auction, but it could postpone the auction for a while. When a debtor files for bankruptcy, the court issues an order known as an automatic stay that stops attempts from creditors to collect money—including postponing an auction. However, the lender can then file a motion to lift the automatic stay, especially if the Notice of Default was already filed.
File a Temporary Restraining Order
Most people associate a temporary restraining order with domestic abuse, but petitioning the court for protection from abuse can also include a request to postpone an auction. Borrowers will need to hire a lawyer to file a temporary restraining order, and that lawyer might need to find a reason based on fraud or some wrongdoing on the lender’s part. Even if the lawyer is successful and wins the argument, the restraining order is not permanent.
Make a Short Sale
Telling a lender that the borrower is attempting to make a short sale is generally not enough; the borrower must submit an offer to the bank from a qualified buyer. The real estate agent or lawyer handling the negotiation for the borrower then calls the bank’s negotiator and requests a postponement of the auction. Often, banks will not consider a request for a postponement until the auction is a few days away.
Fighting a Foreclosure in Court
If you believe that you have a valid argument against a pending foreclosure, you may want to go to court to fight the lender. You can respond to the lender’s lawsuit against you if the lender is using the judicial foreclosure process, or you can bring your own action in court if the lender is pursuing a non-judicial foreclosure. Defenses can be very technical and fact-specific, but generally a homeowner may want to challenge a foreclosure if the lender failed to follow the mortgage terms or the law in their state. You would need to show that this failure infringed on your rights.
For example, you might be able to stop or at least postpone a foreclosure if you did not receive proper notice of the foreclosure from the lender. Both state law and the terms of your mortgage may provide rules for the lender to follow if it decides to foreclose. Or you may be able to argue that the foreclosure resulted from errors by your mortgage servicer, such as failing to properly credit your payments and reporting that you missed them instead. If you have a right to reinstate your mortgage under state law or the terms of the mortgage, you can hold the mortgage servicer accountable for providing you with the incorrect reinstatement amount. Read more here about common errors and abuses by mortgage servicers.
Fighting a Judicial Foreclosure in Court
You will receive a summons and complaint at the outset of the lawsuit that the lender files when it is seeking a judicial foreclosure. If you want to fight the foreclosure, you should read these documents carefully and make sure that you respond within the deadline provided. You also will need to follow any court rules for your response, formally known as an answer. You may be able to reach a settlement with the lender outside court if it feels that your defense has merit. If the lender does not feel that you have a strong defense, it may file a motion for summary judgment.
A summary judgment motion is a way to dispose of a case without going through a full trial. The party seeking summary judgment argues that there is no genuine dispute of material fact and that the opposing party cannot prevail under the law. You would need to provide evidence to oppose the summary judgment motion. The judge will determine whether your defense can survive summary judgment, which means that you can proceed to trial. If the judge does not believe that you can make a defense, they will grant summary judgment to the lender and allow it to proceed with the foreclosure sale.
Fighting a Non-Judicial Foreclosure in Court
While the lender starts the court process in a judicial foreclosure, the homeowner starts the court process in a non-judicial foreclosure. This has a critical impact on the burden of proof. The lender has the burden of proof in a judicial foreclosure lawsuit, while the homeowner has the burden of proof if they are bringing a lawsuit to stop a non-judicial foreclosure. This is because, in theory, the mortgage contract provides for the lender’s right to a foreclosure, so the homeowner would be asking the court to stop an otherwise permissible process. The goal in a lawsuit against a non-judicial foreclosure is getting the court to issue an injunction against the foreclosure. This pauses the foreclosure until the judge rules on whether you have a defense or whether the foreclosure should move forward.
For a Foreclosure Lawyer in Tooele Utah, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506