Injunctive Relief and Pauper’s Status

A Temporary Restraining Order (TRO) is a formal request for ‘injunctive relief’ (“injunction – n. A court order commanding or preventing an action.” Black’s Law Dictionary 2nd Pocket Edition (2001) Id. 349) usually for a period not exceeding 14 days, in which time, should a TRO be granted, a movant must set his Petition for Injunctive Relief for hearing. If for example, if a judgment has been rendered in an action for eviction/writ of possession and a party wishes to appeal the judgment, a timely appeal must be made (usually within 5 days).

If the movant has met his 5 day window and filed a timely appeal, and an adverse party (i.e. 3rd party purchaser) is attempting to execute a writ of possession, which by law he may and in many cases he will, the movant may chose to file for a TRO in which he may be requesting the court to enjoin the adverse party and all of his agents from executing the writ.

There are elements to everything in law, and elemental thresholds may vary from state to state so it is important that you check your own state’s statutes and case law for information specific to your state. However for example, according to the Texas Supreme Court the elements of a TRO have been well clarified in the case of Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968) and pursuant to Sun, the elements one must meet are as follows:

1) A party seeking a TRO must show the court that he has a “Causes of Action” against the Defendant to the TRO. There are a number of causes of action, each with their own elements, which must be met, that a movant could possibly claim including but in no way limited to – Collateral Estoppel; Abuse of Process; Breach of Contract (questionable, one of the elements of a contract breach is that there must be a valid contract to have been breached); Common-Law Fraud; Statutory Fraud; Bad Faith/Unclean Hands; Lack of Actual Authority; Intentional Infliction of Emotional Distress; Negligence by an Attorney; Slander of Title; Malicious Civil Prosecution; Negligent/Intentional Misrepresentation; Unfair Collection Practices; Assisting & Participating; Concert of Action; Conspiracy; etc.

2) A party seeking a TRO must show the court that he has a “Probable Right to Relief”; and pursuant to Sun, the applicant for a temporary injunction is not required to show he will prevail at a final trial; “he needs only to plead a cause of action and to show a probable right on final trial to the relief he seeks [and probable injury in the interim].” However, some Texas appellate courts have more recently held that a party applying for temporary injunction needs to offer at least some evidence that establishes at least a probable right to recover on final trial. So, as it’s neither required nor appropriate to prove your entire case during the preliminary injunction hearing, but considering that at least some evidence must be offered to establish at least a probable right to recover, it’s prudent to address some evidence to demonstrate a probable right to the relief sought.

3) You bust show the court that there is a “Probable Injury” that will occur in the event the injunctive relief sought is denied. As a caveat to the 3rd element, the ‘injury’ must be irreparable and beyond mere worry, anxiety, vexation, embarrassment, or anger, and beyond all things incalculable. The Dallas Court of Appeals, 5th district, in the case of Dallas Anesthesiology Associates, P.A. v. Texas Anesthesia Group, P.A., 190 S.W.3d 891, 897 (Tex. App.—Dallas 2006, no pet.), has defined that harm or injury is irreparable when the plaintiff cannot calculate its damages or if a defendant is incapable of responding in damages.

If a party seeking a TRO goes into court and says the loss is incalculable, and then claims that his “house” is worth $120,000.00, then he has: 1) defined the matter in controversy is a “house” which is defined as a structure that CAN be replaced; and 2) that the structure has a dollar value which if repaid would effect a repair, therefore the injury IS calculable, and is NOT irreparable. That guy just got his petition for a TRO and injunctive relief denied.

However, if a party argues that “It is well established law that each and every piece of real estate is unique.” Greater Houston Bank v. Conte, 641 S.W.2d 407 (Tex. App. 1982); “each and every piece of real estate is unique” and that “is certainly an element to be considered in deciding whether there [will be] irreparable damages”)” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 Tex. 2002 (2002); “Every piece of real estate is unique, and if foreclosure were allowed before a full determination of the usury claim, appellee would be irreparably harmed.” El Paso Development Co. v. Berryman, 729 S.W.2d 883 (Tex. App. 1987). What makes it unique is the fact that a “home”, which in contrast to a structure (house), is where memories are made, relationships and reputations are established with neighbors, it is where family pets are buried beneath the oak tree in the back yard that mom and dad planted there the first weekend after they moved in just 2 months before Junior came along, etc… THAT is an irreparable, irreplaceable, and incalculable injury.

If your TRO is granted, as like in an appeal, the court will (should) set a bond amount that must be met in order to put the TRO into effect. A TRO will not be of any force or effect until a bond is posted.

If you filed your appeal by an “Affidavit of Inability to Pay Costs” (aka ‘pauper’s affidavit’) then you have established a “pauper’s status”. If your pauper’s status claim was not challenged, and you qualified for pauper’s status then unless your financial status changes drastically at some point in your ongoing case, it is important to maintain your status throughout the entire process.

For example, if you did not have the money at the time of appeal to pay an appeal bond, hence the pauper’s affidavit, then how can you afford the TRO bond?

In most cases a surety bond can be offered in lieu of a cash deposit upon the registry of the court, which would maintain your pauper’s status. It is common for a bond to be set by the court in an amount ranging from $1000 – $2500 depending upon how much the other side would stand to loose over the course of an average month mortgage payment or in rents, which is subsequently based upon the property value. See sample template documents on the X-Files page of Pro Se Foreclosure

Now your TRO is granted and bond has been posted now you must set your petition for hearing a hearing for Injunctive Relief.

Here is where it gets tricky. You need not go to the merits, and most likely will not be allowed to go to the merits of your case in the TRO hearing. That is what the hearing for injunctive relief is for. This means that your petition for a TRO should be drafted as a full blown Petition for Injunctive Relief in which you have plead out (in writing) all of the elements required for injunctive relief and the merits of your case and shown that you have met at least the minimum requirements thus giving the power to the court to come to a good ruling.

Once you get into the injunctive relief hearing, this is where you go right to the heart of the matter, and show the court why you think the party who is attempting to execute a writ of possession is not lawfully entitled to do so as an operation of law.

In Texas as well as in most states, the jurisdictions of a Justice Court in an action for possession, and the jurisdiction of the District Court in which a ‘wrongful foreclosure” run concurrent (together at the same time) as where a suit filed in the State District court or Federal Court abates (stops, supersedes, takes precedence over) an action in regard to possession in the Justice Court. See what I call the Fuchs Doctrine and similar doctrines throughout the several states.

Steve Skidmore

GET JURISDICTIONARY NOW!!!

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s