Learn the basic steps to take when responding to a foreclosure lawsuit.
A foreclosure is either nonjudicial or judicial depending on state law and, in some cases, the particular circumstances. In a judicial foreclosure, the foreclosure goes through the state court system, and a judge must sign off on the process.
The judicial foreclosure process starts when a lender sues a delinquent borrower in the county where the property is located. To initiate the suit, the lender (the plaintiff) files a document called a "complaint for foreclosure" or "petition for foreclosure" in court. This document is then served to the borrower along with a summons. A notice of lis pendens, Latin for "suit pending," is recorded in the county records.
The Complaint for Foreclosure, Summons, and Notice of Lis Pendens
These three documents—the complaint, summons, and notice of lis pendens—provide notice of a foreclosure lawsuit (a judicial foreclosure).
Complaint for Foreclosure
The complaint for foreclosure is the document that states the lender's claims in the lawsuit. For example, the complaint will describe the mortgage (or deed of trust), the promissory note, the property to be foreclosed, the default, and the amount due, and list the defendants and describe their interest in the property. It will also include exhibits, such as a copy of the note and mortgage.
The complaint will also say what the lender seeks, called "relief," from the court. For example, the complaint will typically ask the court for the right to sell the property at a foreclosure sale and apply the sale proceeds to the mortgage debt.
If allowed by state law, the complaint might also ask for a deficiency judgment if the proceeds at the foreclosure sale don't fully cover the total debt amount.
Summons
The summons informs defendants that they must file an answer to contest the lawsuit. Summonses are issued for each defendant who's named in the foreclosure lawsuit. For instance, the borrower will be named as a defendant, along with any lienholders, like second mortgage holders and creditors with judgment liens, that are of record when the suit is filed.
Summonses notify the defendants of their rights and state how many days they get to respond to the complaint's allegations, usually 20 to 30 days. A defendant who decides to answer the claims in the complaint must file the response within this time limit.
Notice of Lis Pendens
The notice of lis pendens is a document filed with the county clerk in the land records to provide notice to the public, subsequent lienholders, and potential purchasers of the property that a foreclosure suit encumbers the property. You won't get a copy of the notice of lis pendens when served the lawsuit paperwork.
Responding to the Complaint and Summons
You must file an answer to the complaint to fight a judicial foreclosure. The lender must then prove its case to the court. Otherwise, the court won't allow the lender to sell the property at a foreclosure sale.
How to Answer a Foreclosure Complaint
The answer should include responses to each of the lender's claims. Include a numbered paragraph response for each of the numbered paragraphs of the complaint. You must admit, deny, or state that you don't have sufficient knowledge to admit or deny the allegations for the corresponding paragraph in the complaint.
The lender must prove any allegation that is denied. If an allegation is admitted, the court will accept it as fact. You shouldn't admit to any of the allegations or statements unless you know they're 100% correct.
Asserting Defenses and Affirmative Defenses
In addition to responding to each of the lender's claims, a defendant can assert defenses or affirmative defenses as part of the answer.
A "defense" is a reason why the foreclosure lawsuit shouldn't have been filed in the first place. For example, if you aren't actually delinquent in payments, that's a defense.
An "affirmative defense" is a reason why a judgment shouldn't be granted in favor of the lender. Many possible affirmative defenses or counterclaims to a foreclosure action exist, including Truth in Lending Act violations, Fair Debt Collections Practices Act violations, predatory lending, standing, and failure to adhere to foreclosure procedural requirements.
What to Do With the Answer
The defendant must sign the answer to the complaint and mail a copy to the lender's attorney. The appropriate mailing address can be found in the complaint, usually under the attorney's signature.
The answer must also be filed at the courthouse. Look on the summons to find the court's address.
Choosing Not to File an Answer
You don't have to respond to the summons if you don't want to fight the foreclosure. Then, the court will likely enter a "default judgment" against you. A default judgment means you automatically lose the case by failing to answer, and the lender will be granted the relief sought in the complaint.
The lender will then be able to sell the property. Again, depending on the laws of your state, the lender might also be entitled to a deficiency judgment.
When to Seek Counsel
If your loan servicer or lender missed a required foreclosure step, made a mistake in the process, or violated federal or state foreclosure laws, you might have a defense that could force a foreclosure restart, or you might have leverage in working out an alternative.
So, while responding to a summons without an attorney (acting "pro se") is possible, an attorney might be able to call attention to defenses or flaws in the lender's complaint or actions that you don't notice. If you want to file a response to a lender's complaint for foreclosure, consider talking to a competent lawyer in your area.
