Equitable Remedies

Not every plaintiff in a lawsuit seeks monetary damages. Sometimes a plaintiff needs a judge to order a defendant to either perform, or refrain from performing, a specific action. When a plaintiff pursues a claim in court for which there is no monetary remedy, that plaintiff is seeking an “equitable claim,” as opposed to a “legal claim” seeking monetary damages. In this context, the business meaning of equitable relief generally refers to court-ordered actions designed to achieve fairness where financial compensation alone is insufficient.

There is no right to a jury trial for equitable claims, as there is for legal claims. Therefore equitable claims are usually heard by a judge in a bench trial. Judges hearing equitable claims are usually less reliant on case precedent than they are for legal claims and are more likely to issue rulings based on principles of fairness grounded in equity law remedies. Equitable relief often takes the form of an injunction, a restraining order, or a declaratory judgment that sets out the parties’ future obligations. Plaintiffs may seek equitable remedies and legal remedies, including equitable damages where appropriate, in the same action if they have also suffered financial damage.

Equitable remedies are common in breach of contract actions when the plaintiff asks the court to order the defendant to comply with the terms of the agreement. If the plaintiff has also suffered financial damages as a result of the breach, the judge may award legal remedies in addition to remedies in equity. The equitable remedy options available to a plaintiff in a contract include the following:

• Specific performance is an order that the defendant undertake the actions agreed upon in the contract;
• Restitution returns to the injured party any money or assets conferred on the other party;
• Reformation resolves a contractual mistake by changing the terms of the contract to reflect the original intent of the parties; and
• Rescission discharges all parties to a contract from their contractual obligations.

Litigation related to equitable claims and remedies are often complex and require attorneys who understand the difficulties faced by their clients and have the skills needed to obtain the necessary relief. The experienced business attorneys at Thomas H. Curran Associates understand that each client’s case is unique and will seek equitable relief or monetary damages that best protect each client’s interests.

Foreclosure of residential and commercial real property varies by state because each one has its own laws governing the process and addressing such issues as the property owner’s options for bringing the loan current and the process for selling the property. Generally, foreclosures fall into two categories: (i) by judicial process or (ii) by statutory power of sale contained in the mortgage. Thomas H. Curran Associates mortgage foreclosure lawyers have conducted foreclosures under both methods in various states. The Firm has also served as foreclosure defense attorneys in certain cases. In many cases, Thomas H. Curran Associates’s lawyers also represent lenders and servicers in bankruptcy courts in cases that arise in connection with foreclosure proceedings. Individuals and businesses facing foreclosure should seek experienced legal counsel as early as possible to understand their rights, evaluate available options, and determine whether negotiation, litigation, or other legal remedies may help protect their interests.

In states that require judicial foreclosure, mortgagees must commence a foreclosure lawsuit asking the court for the right to sell the property in satisfaction of the underlying debt. Throughout the litigation, both lenders and borrowers may face complex procedural and evidentiary issues that require experienced legal representation. Judicial foreclosure is the primary method of foreclosure used in 22 states, including Florida, Illinois, New Jersey, New York, and Pennsylvania. When the state allows for it, the lender’s attorneys may ask the court to grant it a deficiency judgment if selling the property is not expected to fully pay off the borrower’s debt. If granted, the borrower will remain responsible for any unpaid debt following the foreclosure sale. Alternatively, there are 28 states that allow for non-judicial foreclosures, including Massachusetts, California, Texas, and Georgia. In those states, the mortgage foreclosure process is typically faster because it does not originate through the courts unless the borrower chooses to sue the lender.

The last significant U.S. economic downtown that began in or around 2008 stemmed in large part from the excesses of the home mortgage sector of our economy and related substandard lending practices. The resulting nationwide wave of foreclosures spawned years of litigation challenging mortgagees and lenders and servicers’ right to foreclose mortgages. This foreclosure litigation resulted in many novel legal theories to prevent foreclosure. Thomas H. Curran Associates’s lawyers have years of experience successfully litigating an array of mortgage foreclosure cases that raised numerous complex and novel defenses across multiple jurisdictions in both state courts and bankruptcy courts, with some cases resulting in complex appellate proceedings. The Firm also has deep expertise in ancillary relief such as receiverships and injunction proceedings that are sometimes required to secure the property during the foreclosure process.

By virtue of their broad and deep foreclosure and bankruptcy expertise, the attorneys at Thomas H. Curran Associates are uniquely positioned to advise and represent mortgage lenders and servicers, as well as borrowers in some cases, with their foreclosure proceedings. Our lawyers seek to utilize their experience advocating on behalf of clients to provide them with quality representation while assisting them in prosecuting or defending their foreclosure proceedings in the fastest, most efficient manner.