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Obtaining a Temporary Restraining Order

A temporary restraining order is a remedy issued prior to final disposition of litigation. Its function is to preserve the status quo and to prevent irreparable harm pending the hearing of an application for preliminary injunction on notice. A temporary restraining order has the same force and effect as a preliminary or permanent injunction. But it differs from these in that it may issue without a bond or undertaking; and it terminates automatically when a preliminary injunction either is issued or denied.

The basis for injunctive relief is irreparable injury and inadequacy of legal remedies. The court must balance the effect of the harm to the Plaintiff in withholding an injunction with the effect on the Defendant in granting the injunction. If the harm tips decidedly to the Plaintiff, then the Plaintiff need not show as robust a likelihood of success on the merits. Where the burden on the Defendant is minor, a minimal showing is enough.

In short, the Plaintiff must show:

  1. immediate threat of irreparable harm to the Plaintiff;
  2. plaintiff’s harm outweighs any damage the injunction might cause to the Defendant;
  3. a likelihood, probability, or fair chance of success on the merits at trial;
  4. effect on the public.

An injunction may be granted when it appears by the complaint or affidavits (or declaration) that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury to a party to the action. The term “irreparable injury” means that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other. This definition warrants the use of the injunctive power of the court against a wrong that a trial judge deems insufferable because it constitutes an overbearing assumption by one person of superiority and domination over the rights and property of others.

Because a specific piece of land is in its nature different from every other piece, and, presumably, partly because of the overshadowing social and economic importance of land when the doctrines of equity were developed, contracts for the sale of land always have been treated differently from other kinds of contracts in determining whether equitable remedies should be available. Contrary to the general rule, the presumption is that equity and not law should enforce contracts for the sale of land. The justification is that each tract of land is unique and that money damages can be never be adequate remedy for the failure to deliver parcel of real estate.

Furthermore, the injury to the plaintiff must outweigh any relative damage to the defendants if the temporary restraining order is granted. Due process also generally requires notice and a hearing prior to seizure of property. Requiring a party to post a bond is not a satisfactory substitute for a pre-attachment notice and hearing. Patients whose government benefits have been terminated without notice and a hearing are entitled to a preliminary injunction against termination of benefits without notice and hearing; dire financial conditions and resultant stress caused by termination of monthly benefits satisfies the requirement of irreparable harm.

With the current housing market crises and a significant number of homeowners losing their homes in foreclosure actions, seeking a temporary restraining order can be a viable tool.

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