§ 65.044.Contest of Affidavit

The contest procedure, and its timing rules matter as much as its substance.

A party may not contest an affidavit filed for a temporary restraining order.

That is the first rule, and it makes the initial relief real. A restraining order sought against an imminent foreclosure cannot survive a contested hearing on the applicant’s finances.

A contest is available at the temporary injunction stage, either after service of a temporary restraining order or, where none was sought or issued, after service of notice of the injunction hearing.

The contest is made by written motion with notice to all parties under the rules of civil procedure.

The court hears it at the injunction hearing and determines whether the applicant is financially able to execute a bond.

Consolidating the two questions is efficient and fair. The applicant appears once, and the financial question is decided alongside the merits of the injunction rather than in a separate proceeding.

Two things may not be considered, and both are essential to the scheme. Income from a government entitlement, and the value of the applicant’s residential homestead.

Excluding entitlement income protects those on disability, retirement or public assistance from being treated as able to pay out of subsistence income.

Excluding the homestead’s value prevents the obvious circularity — requiring a bond funded by the equity in the house the injunction exists to save.

A bond may be ordered only on a determination of ability, and subsection (f) allows an attorney acting without charge and without a contingent fee agreement to file an affidavit describing the financial nature of the representation — corroborating the applicant’s position from a source the court can weigh.