California Code of Civil Procedure §529: What is it and How Does it Impact Your Case?

In my previous post I discussed how to stop a foreclosure using a court order.  When time is of the essence we go in ex parte to get a TRO aka temporary restraining order, but as the name suggests it is only temporary.

Ultimately your attorney will have to ask the court to issue a PI aka preliminary injunction. This is where california code of civil procedure (CCP §529) comes into play, because the statute says in part, “On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified…” which means the court is required to order an undertaking, which could be a bond or a specific dollar amount that is usually deposited or posted with the court.

Now the million dollar question client’s want to know is how much is the undertaking going to be and the answer is simply, “I don’t know” which isn’t the answer any client likes to hear, but let me explain why that is the answer.

The reason I don’t know is because every judge, and I mean every one here in California, both in state and federal court[1] has given a different amount.  For example a few weeks ago I had a judge grant a PI without having to post any undertaking.  While I would like to think every case would be like this one, it has been the exception.  The other cases have varied greatly from $125,000.00 bond (the property has a value of over five million dollars) to a monthly payment of $1750.00 to a one time deposit of $1,600.00.

Why such a wide range of amounts?  Because it is 100% discretionary and by the time the judge hears your motion they will have seen their fair share of foreclosure litigation cases.  Some will have been brought by the property owner themselves (in pro per) without an attorney, some with attorneys who have little experience arguing these motions and unfortunately on rare occasions some with an attorney who can make the proper arguments to try to minimize the amount of the undertaking.  That being said, sometimes you will just get a judge that favors the banks in these cases and in turn makes the undertaking a significant amount.

This is the first hurdle your attorney will have to deal with when trying to stop the foreclosure and if successful, you get to remain in your home until the resolution of your case.

[1] The statute is different in federal court but the purpose is the same.

For more information about how we can help you and your foreclosure case, please contact us for a free consultation

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