Quote: Originally Posted By ~beenawhile
I was wondering....... We were told that we CANNOT INVOKE, or get a TRO since there has been no "ATTEMPT" to take our home as of yet. Is this TRUE?
We are in a non judicial state.
I am TOTALLY shooting from the hip on this and have NO EXPERIENCE with TROs whatsoever. But I will simply relate you you my LAY impression of a TRO.
TRO stands for Temporary Restraining Order and I believe that these are granted in most instances for a TEMPORARY, SHORT and finite length of time. By ex parte TRO, I believe that those discussing the concept mean going before a judge with a sworn pleading and posibly seeking the TRO WITHOUT prior service of the defendant, participation of the defendant in the TRO hearing or effective opportunity to respond.
Our adversarial judicial system DISCOURAGES the granting of orders WITHOUT NOTICE and WITHOUT OPPORTUNITY for the other side to participate, but there are instances where the immediacy of a peril makes granting a TRO essential, as in a protection from abuse order in the instance of domestic violence or a cause of action alleging the destruction of documents or property, etc.
Suppose, for example, that some sort of condemnation of a structure had been made and you only just learned of it when the wrecking crew arrived to knock down your house. Deliberate litigation to set aside the condemnation order wouldn't be possible without first obtaining a TRO to STAY the demolition.
Because TROs are often granted without hearing opposition and judges tend to err on the side of the status quo when presented with something alledged to be an emergency, the TRO will very often last for only a matter of WEEKS while both parties perpare for a hearing on a longer or more permanent INJUNCTION pending the disposition of the case.
Consequently, the TRO would typically be an order that EXPIRES after that short finite period, often contemporaneous with a scheduled hearing on a requested injunction.
If you think you might need a TRO, it couldn't hurt to have a petition and proposed TRO DRAFTED so that it could be quickly altered and a pleading filed immediately upon an indication that matters so required. But you need to bear in mind that what you REALLY need to be preparing is your more deliberate complaint / petition based upon the underlying causes of action you seem to be litigating and have your case for the injunction well prepared. Also, keep in mind that a Judge is going to be RELUCTANT to grant an injunction if you are NOT currently paying your mortgage at least in escrow or into some court depository.
I think your statement is therefore correct -- we CANNOT INVOKE, or get a TRO since there has been no "ATTEMPT" to take our home as of yet -- on two counts. First, an ex parte TRO IMPLIES the need for some exigency. That is the Judge is NOT going to grant ANY order without prior service to the defendant and an opportunity for appearance and argument UNLESS there is some indication of irreparable HARM in failing to grant such an emergency order.
Second, even IF you could obtain such an order, it would be essentially USELESS to you, as it would likely EXOIRE before the REAL EVENT calling for court intervention.