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House built of Straw or A House built of Bricks

Laying the proper foundation is essential before one can begin building upon it. This applies to
almost everything in life. It is no different in issues pertaining to foreclosure. Whether going on
the offense or defense. When one desires to start building they need to make a determination as
to what ingredients to use. Should I use straw or bricks? In a foreclosure action declaratory relief
could be considered a brick and is a good start. A Declaratory judgment is a judgment of a court
which determines rights of parties as well as establishing status quo. Unfortunately it is not used
as much as it should be in this writers opinion. Many times this action will resolve some or all
of the issues in the matter at hand. This determination refers to parties rights of issues presented.
Once this is done then one can proceed with injunctive relief. This type of relief can take place in
many different forms such as temporary restraining orders, preliminary injunctions and
permanent injunctions. Injunctive relief is a very powerful remedy that can be used in regards to
a specific behavior. An injunction could be considered an equitable remedy in the form of a court
order. Injunctions are orders that are made by the courts either restraining or requiring
performance of a specific act in order to give effect to the legal rights of the applicant.
Among the elements which must be proven by the party seeking the injunction are: (1) it has no
adequate remedy other than an injunction (such as money damages); (2) truly irreparable harm
will occur in the absence of an injunction; (3) it is more likely than not that the moving party will
prevail on the underlying merits when the matter ultimately goes to trial; (4) the benefit to the
party seeking the injunction outweighs the burden of the party opposed to the injunction; and (5)
the moving partys right to the relief sought is clear.
Many times the courts have enjoined the trustees sale for a property with a presumed deficiency
with an injunction prohibiting a sale.
en join : as defined in the Merriam Webster Dictionary online
transitive verb in-jin en-\
: to direct or order (someone) to do something
: To prevent (someone) from doing something; especially: to give a legal order preventing
(someone) from doing something

We must strive to build a strong brick house and not a house built of straw which can be easily
knocked down.

Joseph Esquivel
Mortgage Compliance Investigators
Copyrighted 2014