A foreclosure is either nonjudicial or judicial depending on state law and, in some cases, the particular circumstances. In a nonjudicial foreclosure, the property can be sold without any—or with little—court oversight. With a judicial foreclosure, the foreclosure is processed through the state court system and a judge is required to sign off on the foreclosure.
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, which is Latin for “suit pending,” is recorded in the county records. These three documents constitute notification of the foreclosure lawsuit.
Here's a general description of the three documents that a lender uses to begin a foreclosure lawsuit: a complaint, a summons, and a notice of lis pendens.
The complaint for foreclosure is the document that outlines the lender’s claims underlying the lawsuit. For example, the complaint will describe the mortgage (or deed of trust), the promissory note, the property to be foreclosed, the default, the amount due, as well as 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 state 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 and apply the proceeds of the sale 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.
The notice of lis pendens is a document that is 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.
The summons informs the borrowers 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 borrowers will be named as defendants, along with any lienholders (like second mortgage holders and creditors with judgment liens) that are of record at the time the suit is filed. Summonses notify the defendants of their rights and state how many days are provided to respond with an answer to the allegations of the complaint, usually 20 to 30 days. A defendant who wishes to respond to the claims in the complaint must file an answer within this time period.
If you want to fight the foreclosure, you must file an answer to the complaint. The lender then has to prove its case to the court before it will be allowed to complete a foreclosure sale. The answer should include responses to each of the claims made by the lender it its complaint. There should be a numbered paragraph response for each of the numbered paragraphs of the complaint. In each of the numbered paragraphs in the answer, the defendant must generally admit, deny, or state that there is insufficient knowledge to admit or deny the allegations for the corresponding numbered 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.
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 should not 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 procedural foreclosure requirements.
The answer to the complaint must be signed by the defendant and a copy mailed 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 address of the court.
If you don't want to fight the foreclosure, you don't have to respond to the summons. Then, the court will likely enter a "default judgment" against you. (A default judgment means that you automatically lose the case by failing to answer and the lender will be granted the relief that was 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.
It is possible to respond to a summons by preparing an answer to the complaint “pro se” (without hiring an attorney), although an attorney might be able to call attention to defenses or flaws in the lender’s complaint that you won't notice. If you want to file a response to a lender’s complaint for foreclosure, consider contacting a competent attorney in your area.