The Injunction that wasn't – on HOA lien Foreclosures

Gearing up for a complex, urgent, matter can be such an adrenaline rush.

Early the other morning, I get a call from a broker friend about a referral.  A homeowners’ association (HOA) has set a sale date for the foreclosure of its lien for unpaid assessments.  The foreclosure is scheduled for Friday morning and needs to be stopped so that the homeowner can sell the house.  I immediately think injunction.

I have to admit, the #lawyernerd in me got really excited for my first opportunity as a solo to land a temporary restraining order for a client.  Getting an injunction (an order telling the defendant to do or to stop doing something) is no small undertaking, even in the most straightforward of cases.  Adding to that the fact that the sale is scheduled in three days?  It’s going to be a long few days, but it’s totally doable.

Time to pull up the boot straps and get to work.  Fast.

Before I even talk with the potential client, I’m feverishly researching the collection agency, reviewing previous lawsuits brought against it, and refreshing myself on the applicable law and procedures.  I’m all too familiar with preliminary injunction (or other emergency filing) mode and I’ve already researched the common legal issues arising in an HOA lien foreclosure sale case (oh, big law, thank you).

The legal issue at play for my potential client is whether NRS Chapter 116 permits certain fines, late fees, interest, etc. (amounting to several times the amount of past due monthly assessments in many cases) can be included in an HOA’s assessment lien.  I’ll go into more detail in my next blog, but suffice it to say, HOAs want to include everything they possibly can, while banks and homeowners want to keep those amounts to a minimum.

In any event, my potential client calls me less than 20 minutes after I hang up with my broker friend.  We talk some and agree to meet for a late lunch.  Bankruptcy is not an option, so I’ve got to help my potential client decide whether he should fight the foreclosure sale or not, and I’ve got to make myself presentable (working from home in the PJs in the mornings is awesome) and be prepared to give him intelligent advice on how to proceed by 1:30 p.m.

As I’m preparing to meet this potential client, reviewing relevant documents provided, and I’m already beginning to formulate a strategy and am mentally preparing myself for the next few days and sleepless nights.  Being a lawyer can be exhausting, but it’s so rewarding.

If the potential client ultimately intends to move forward with seeking an injunction, then comes the mad dash to:

• Gather, analyze, and authenticate all relevant evidence by declaration or verification;
• Craft an articulate and compelling set of facts;
• Determine what parties to name as defendants and decide which causes of action can be incorporated in the Complaint without violating Rule 11;
• Further research and develop the legal bases for an injunction;
• Draft a persuasive compelling legal argument, addressing each threshold issue for an injunction – likelihood of success on the merits, irreparable harm, etc.;
• Prepare other procedural documents to accompany the Complaint and Motion for Temporary Restraining Order/Preliminary Injunction;
• Fine tune all documents, get client approval and signatures, and finalize all before e-filing;
• Deliver the air tight package of documents to a Judge no later than Wednesday afternoon and convince the Court that a TRO stopping the sale should be issued without notice to the defendants (the TRO must be signed, filed, and ready for service no later than Thursday afternoon, mind you);
• Arrange for the posting of a bond to effectuate TRO; and, of course,
• Get everything served on the HOA and its collection agency before the Friday morning foreclosure sale.

I’m a little sad, because I’m going to have to cancel lunch with a friend that I really did not want to cancel.  But let’s get this party started!

How you handle an urgent situation like an injunction is one of the real job interviews.  You have to sell yourself to the client – who just so happens to think you look young enough to still be in high school.  Then, its either you do everything right and be a hero in your client’s eyes or do something wrong and you look like a fool to your client and the Court.  Not to mention, if you fail, you likely lose this client and future referrals from the referral source.  There’s no room for a misstep here, people.  Do you get it yet?

Ultimately, an injunction was not meant to be for the #lawyernerd; at least not today.

The HOA offered to postpone the foreclosure sale, obviating the need for an injunction.  Although I had nothing to do with this result (he got the offer before we parted from lunch), I got some credit for being his good luck charm.

The luck of the Irish is certainly strong.  Even if it’s not, I’ll take it.  What a fun day. ????

*published with permission