Full question:
My wife has a home which is in foreclosure and will be sold Aug 16 under the redemption law. Several errors were made in the deed. She wants to file a motion to dismiss . She is running out of time. Does the filing of the motion itself stay the foreclosure until heard by the court?
- Category: Real Property
- Subcategory: Foreclosure
- Date:
- State: Alabama
Answer:
No, the filing of the motion itself won't stop the foreclosure. The court would probably have to order injunctive relief based upon a motion for the same. If the sale is scheduled, a foreclosure lawsuit has already been filed and a judgment of foreclosure was ordered. The time to raise defenses is in the answer, so if they weren't raised earlier, they may be deemed waived. Due to this late point in time, the only recourse may be to redeem the property by paying the amounts due and costs of foreclosure. We sugggest you contact a local attorney who can review all the facts and documnts involved.
In foreclosure lawsuits, the debtor typically asks the court for three things, in the following order:
-a temporary restraining order (which lasts for a certain number of days, typically under 2 weeks)
-a preliminary injunction (will last until the court decides the case), and
-a permanent injunction (which will be granted if you win your case).
Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
