Emergency TROs to Stop Foreclosure in Heggstad Cases
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What to Do When You Discover the Problem Too Late
In some trust administration cases, families only discover the need for a Heggstad Petition when it’s almost too late—often when a foreclosure is already pending on a property that was supposed to be in the trust. If the lender refuses to negotiate or delay the sale, there is still a powerful legal tool available: an Ex Parte Petition for a Temporary Restraining Order (TRO) and a Request for Order to Show Cause (OSC) for a preliminary injunction.
Why File an Ex Parte TRO in a Heggstad Case?
The goal of a TRO is to temporarily halt the foreclosure while the court considers the Heggstad Petition. This emergency relief is especially critical when:
The property was intended to be in the trust but wasn’t properly titled
The lender is unwilling to delay or negotiate
The foreclosure would result in irreparable harm, such as the loss of equity or the forced sale of a family home
You can also strengthen your case by showing that the foreclosure may be legally flawed—for example, if the lender failed to follow proper notice procedures or did not attempt to contact the borrower as required by law.
Legal Standard: Irreparable Harm or Waste
To obtain a TRO or injunction, you must show that allowing the foreclosure to proceed would cause irreparable harm or waste. Courts often accept the argument that:
A foreclosure sale would result in the loss of significant equity
The property would be sold at a below-market price, harming the trust and its beneficiaries
The trustee needs time to resolve title issues through a Heggstad Petition
Real-World Example: Stopping a Foreclosure in 48 Hours
In one recent case, our client discovered—just days before a scheduled foreclosure—that a family home had never been properly transferred into the trust. The lender refused to delay the sale, and time was running out.
We immediately filed an Ex Parte TRO request in probate court, supported by a declaration explaining the urgency and the decedent’s intent. We also submitted a pending Heggstad Petition and made every effort to notify the lender, including personal service via process server.
The court granted the TRO within 48 hours, halting the foreclosure and preserving the property. A hearing was then set for the OSC, giving the lender a chance to respond while the Heggstad Petition moved forward.
Step-by-Step: How the Process Works
1. File the Ex Parte TRO Request
Include a declaration explaining the urgency
Attach the Heggstad Petition and proposed order
File the TRO request as part of an estate matter, not a trust matter
Attempt contact by phone or email
Serve the TRO papers via process server
Document all notice efforts in your declaration
3. Attend the OSC Hearing
If the TRO is granted, the court will set a hearing date
Personally serve the OSC and supporting documents on the lender
Be prepared to argue for a preliminary injunction
Standing Issues: A Word of Caution
Some judges may question whether a trustee in a pending Heggstad Petition has standing to seek injunctive relief. In such cases:
File the TRO request as part of an estate matter, not a trust matter
Be prepared for additional procedural steps
Include evidence of your authority and the trust’s intent
Conclusion: Act Fast, But Strategically
If you’re facing a foreclosure on a property that should have been in a trust, time is of the essence. An Ex Parte TRO can stop the sale and give you the breathing room needed to resolve title issues through a Heggstad Petition. But success depends on urgency, proper notice, and legal precision.
