Success comes one tiny step at a time. A good friend who has been sniping at his pretender lenders since February of 2008 has succeeded in stalling the 20th attempt to sell his home. THIS time he decided to get the action into Superior Court. His story, with identifying information redacted, yet posted with his permission, is a story in tenacity, quality research, and having good communications equipment ready.
Here is what happened yesterday: (This is his e-mail word for word excepting redactions which are noted:
Get to the point. Will, ya?
My 20th foreclosure was set for 2pm today, June 20, 2011. The bank had dug its heels in like I’d never experienced before. Some of the bank attorneys seemed to be taking my ouster personally. They were rocks of Gibraltar against all of my efforts. Postponing looked… Well, it didn’t look at all. Securing a postponement wasn’t an option.
So I put a pretty reasonable TRO effort together on Friday, June 17, 2011. XXXXX and I worked diligently for hours getting all the pieces together. We finally got the beast filed at Maricopa Superior court at about 4:15pm. A lot late, but it was filed. We hustled to the old court building to be assigned a judge. I was assigned to Judge John A. Buttrick. So, we went back to the Superior Court building to see the Judge. We rang the bell for about 15 minutes. Finally an assistant for a different judge answered the door. She took our papers and showed back up about 5 minutes later. It was certainly 5pm by now. Well, I wasn’t granted a TRO but I did get a hearing for today, Monday. The problem was that the judge on Friday scratched off the TRO on the order I had prepared and he only left me with a show cause hearing.
I did my best to get the foreclosing entities noticed over the weekend. (I hadn’t received Summonses Friday because I forgot to prepare them.) I couldn’t serve them with the summonses so I had to settle for notice. I faxed the “beneficiary” but I couldn’t find a fax number or any email addresses for the “trustee.” So, I called the attorneys I had spoken to before at the trustee. I left messages for three of them. One called back and gave me an email address I could notice her at. I sent it right off. She sent me back a note that I had to have the TRO signed by the judge and conveyed to her before the sale or they were going to hold the sale at 2pm. She was playing me knowing that there was no TRO in the mix because the judge had scratched it off on Friday. I’m sure she was grinning; she knew she had me!
So, off to court… (I want to state emphatically that I honestly had no fear. I felt I was on my game and I had readily accessible notes for complicated things that might trip me up. Preparation pays!) Right from the get go, the judge was holding my efforts to AZ R. Civ. Proc. 65(a) and 65(d). I hadn’t served the defendants. He knew this. I did my best to convey that the beneficiary and trustee had both been put on notice. I showed the judge the fax confirmation and the return email. It wasn’t enough. As time went on, I picked up my notes and started waltzing the judge through the four elements I knew I needed to convey. He gave me leeway and I got through them. I had at least covered all the fundamentals I could cover in his courtroom.
Now it was time to gently push for some latitude. The judge wasn’t having any of it. He was adamant that there was not going to be a TRO. I needed time… I asked for seven days grace. The judge went along and I tried to coach those seven days into a seven day TRO. But it wasn’t to be. I walked out of the court with an “order to appear” on Monday, June 27, 2011 at 9:30am.
There was some after court dialog about whether the judge asked me a specific question about notice. I remember bring up the notice concept and one attendee mentioned that the judge brought up a notice question to me. I clearly remember making the notice argument but I honestly don’t remember the judge asking me about notice. Perhaps, I should order the transcript but I’m not that curious. I’ll remember that I may have made a mistake or didn’t hear a question that the judge asked me. I’ve been put on notice. Breathe deep, pause, listen, breathe deep, respond, breathe deep, pause, listen…..
There you are. I didn’t get the TRO and my sale was in a few hours. Well, I did a self-assessment, the resources I had were: an “Order to Appear,” a recorded Lis Pendens, my scanner, the one attorney’s email address, my laptop, my AirCard and notes from 250 calls with the beneficiary and trustee. What should I do? First, I scanned and sent off the Order to the one attorney I had been dealing with. I referenced that the sale should be postponed until after the Appearance. The stat reply email reiterated, get the TRO or the sale will be held. That didn’t work. I scanned my 250 call notes for any email addresses or phone numbers of people I thought could rise to the occasion. The pickins were mighty slim. I fired off about three emails and followed them up with phone calls. Two of them were not in the office. Darn! One of them was! She’s an attorney in the IP department of the beneficiary. She heard me out and said I would get a call back this afternoon. tick, Tock, TIck, TOCK. I had about one hour to go. There wasn’t much else I could do on the phone or via email. (I never did get that call.)
It was time to invite prospective buyers to my court date next Monday. I printed off about 5 Lis Pendens and attached the “Order to Appear” to each one. I went to the plaza where the sales were conducted outside the courthouse. I found my auctioneer. To my surprise, the hordes of buyers were at some of the other auctioneers. I chatted along with the auctioneers and informed them about the Lis Pendens and the Order. They called their supervisor over and he immediately took the Lis Pendens. He walked off and called the trustee and possibly the beneficiary. XXXXX and I were casually presenting the Lis Pendens with each suitor that expressed an interest in my property. Most of them acted cavalier and unfazed but they eventually slinked away from the tainted offerings. There was one young bidder that rode out the storm. We continued to banter with the auctioneer. About 30 minutes after the scheduled sale time, I pulled out the computer and the AirCard. The trustee still had the sale listed for 2pm on the trustee’s sale site. I hit the refresh button and the sale had disappeared. I took and immediate screenshot of the missing sale info. I cajoled the supervisor about the missing sale info. He emphatically stated that he didn’t rely on the website. (Neither would I normally but I’ve made enough screenshots that I could show an “evidentiary habit” if I needed to.) I refreshed the website and the sale data had reappeared. BUT WAIT, the sale date was now showing as July 20, 2011. I mentioned it to the supervisor. About a minute later, the supervisor confirmed that my sale had indeed been postponed again.
I have lived to fight another day!
My big takeaway is that you have to use every resource you have and you have to use it in the most tenacious way possible. Notice that I didn’t say anything about anybody else being tenacious for you. I also need to reread Rule 65!
I am grateful for all of the assistance everybody gave me on this effort; especially XXXXX. XXXXX’s varied views of things were a true blessing.
I’ve got to get back to work, I’ve a got a great case to review at Tuesday’s meeting and a whole bunch of defendants to serve.
Thank you for your interest.
May your possibilities be unlimited and your opportunities bountiful.