MABRY tip no injunction needed to stop foreclosure TERRY MABRY et al., opinion 2923.5 Cilvil code

The court in Mabry pointed out there are provisions in 2924 G to postpone a foreclosure sale. This could go a long way to facilitate the postponement and workout contemplated by 2923.5. This would be without having to Get a Temporary restraining order (TRO) and preliminary injunction. In other words not have to meet the burden to sustain the preliminary injunction and since the holding declares no tender is necessary no posting of a bond. I have attached the provision:
(c)

(1) There may be a postponement or postponements of the sale proceedings, including a postponement upon instruction by the beneficiary to the trustee that the sale proceedings be postponed, at any time prior to the completion of the sale for any period of time not to exceed a total of 365 days from the date set forth in the notice of sale. The trustee shall postpone the sale in accordance with any of the following:

(A) Upon the order of any court of competent jurisdiction.

For all you non lawyers out there this is key.

To sustain a preliminary injunction we have to put on a mini trial demonstrating that the case is more likely than no to prevail at trial;and sustain a permanent injunction. In the early stages this is an impossible burden without discovery.The other side puts up the Tender rule and asks the court to make the plaintiff (our client) put up a bond sometimes as high as the loan balance. If we use the code 2924 G the court has the power to delay the sale pursuant to 2924 G (c)(1)(A) for up to 365 days without using its equitable powers of injunction. The court can postpone the sale as a mater of law.
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Author: timothymccandless

I have spent most of my professional life helping people who were being taken advantage of by systems they did not fully understand.

7 thoughts on “MABRY tip no injunction needed to stop foreclosure TERRY MABRY et al., opinion 2923.5 Cilvil code”

  1. Wow thank you… this maybe very helpful.. Things that have happened to us such as not even posting REQUIRED notices would be able to be addressed then. THANKS>

    Reply

  2. Thanks Tim

    Can you quote case reference on this? I would love to read the pleadings.

    I just read 2923.5 Civil code and could not find anything relating to what you are saying.

    Also, what do you mean by a “mini trial”? In what court? Presumably, we have an existing pending foreclosure in administrative process pending a trustee sale. Do you mean file a civil action in Superior Court and present evidence that the case is unlikely to prevail?

    Filing a suit requires the Judge to set a trial date..which could be (likely be) after the sale date.

    I am confused. Thanks in advance.

    Sincerely
    George

    Reply
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  4. I am looking for help on a possible foreclosure. I need to know the quickest way to stop it, would it be with an attorney for an injunction? or claiming bankrutcy?
    This is for a second home out of state. Someone please respond.

    Thanks

    Reply

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