Motion for Preliminary Injunction
Seek a court order preserving the status quo during litigation — typically the next step after a TRO to stop foreclosure throughout the case.
Overview
A Preliminary Injunction is a court order that maintains the status quo during the pendency of litigation — in foreclosure cases, it stops the lender from proceeding with foreclosure until the case is resolved on the merits. A Preliminary Injunction is typically sought after a TRO is granted and before the TRO expires. Unlike a TRO, a Preliminary Injunction: (1) is issued after notice and a hearing where both sides present evidence, (2) can last for the entire duration of the litigation (months to years), and (3) is immediately appealable. The standards for a TRO and Preliminary Injunction are identical; the difference is procedural.
Purpose
- •Preserve the status quo (stop foreclosure) during the entire litigation
- •Prevent the lender from selling the property before the homeowner's claims are adjudicated
- •Maintain the court's ability to grant effective relief at the conclusion of the case
- •Convert emergency TRO relief into lasting protection
When to File
File before the TRO expires (typically day 10-14). Often, the TRO and Preliminary Injunction motions are filed together — the TRO providing immediate relief while the PI hearing is scheduled. If no TRO was sought, file the PI motion as early as possible in the litigation.
Timeline
The PI hearing is typically scheduled 14-30 days after the TRO is issued. Both sides present evidence and argument. The court may rule from the bench or take the matter under submission (written ruling within days to weeks). If granted, the PI lasts until final judgment or further court order.
Key Elements & Requirements
Verified Complaint or declarations supporting the underlying claims
Memorandum of Points and Authorities addressing all four injunction factors
Evidence package: Documents supporting likelihood of success (standing defects, RESPA violations, etc.)
Proposed Preliminary Injunction Order with specific prohibited conduct
Bond/Undertaking: Required by FRCP 65(c) — amount set by court
Notice of Hearing: Scheduled for a date certain where both sides will present evidence
Legal Standard
The four-factor test: (1) Likelihood of success on the merits — the most important factor. You must show a reasonable probability of prevailing on at least one claim or defense. (2) Irreparable harm — loss of a unique family home is the classic irreparable harm. (3) Balance of hardships — losing your home vs. lender's delayed foreclosure. (4) Public interest — preventing wrongful foreclosures serves the public interest. Courts may also use a 'sliding scale' where strong showing on one factor compensates for weaker showing on another.
Strategy & Tips
Build your evidentiary record BEFORE the PI hearing. Use discovery to gather documents supporting your claims. Submit detailed declarations with exhibits. Expert testimony (forensic loan auditor, title expert) can be powerful. The PI hearing is essentially a mini-trial — prepare thoroughly. Be ready to post a bond (often 1-3 months of mortgage payments).
Court Filing Information
Where to File
The court where the foreclosure case is pending.
Fees
Motion filing fee varies by court. Bond: Court determines amount (typically 1-3 months of mortgage payments or the lender's estimated carrying costs).
Format
Full motion package with supporting memoranda, evidence, and proposed order.
Copies Required
Original to court + copy to opposing counsel + your copy. Serve the notice of hearing on all parties.
Frequently Asked Questions
What's the difference between a TRO and a Preliminary Injunction?+
A TRO is emergency, short-term relief (10-14 days) that can be granted with minimal notice. A PI is granted after a full hearing where both sides present evidence and lasts for the duration of the litigation. The legal standard is the same, but the PI hearing is more rigorous.
What happens if I lose the Preliminary Injunction hearing?+
If the PI is denied, the foreclosure can proceed unless you obtain other relief (bankruptcy, appeal). However, the underlying case continues — you can still litigate your claims. The denial of a PI is immediately appealable (interlocutory appeal). If the PI is denied and a sale occurs, your appeal of the denial may become the primary vehicle for challenging the foreclosure.
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