How To Respond To a Foreclosure Summons

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.

You'll have to make some tough decisions when facing a foreclosure. For one thing, you must decide if you want to fight the foreclosure by responding to the summons. You'll also need to figure out if getting a foreclosure defense attorney to help you is worthwhile.

If you have a legitimate defense to the foreclosure and want to keep your home, you'll most likely need a lawyer to assist you. An attorney can defend you in court against the foreclosure, advise you about your legal rights under federal and state law, and help you enforce those rights. A foreclosure defense lawyer can also tell you about different loss mitigation options, like getting a loan modification, or whether you should consider filing for bankruptcy, and help you work out a way to avoid a foreclosure.

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).

What Is a Complaint for Foreclosure?

The "complaint" (or petition) 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.

What Is a 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.

What Is a 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 Foreclosure 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 to the Foreclosure Complaint

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 to a Foreclosure Complaint

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.

Why You Should Hire a Foreclosure Defense Attorney

Legally speaking, you don't have to hire a lawyer to represent you in a foreclosure. You can represent yourself "pro se," which means without an attorney. But each foreclosure case is different and has complicated nuances that can ultimately make or break the case. The learning curve for most legal tasks associated with defending against a foreclosure is just too steep for many people, especially given the other pressures in their lives when struggling financially.

Even if you think you have a defense to a foreclosure, you might not have the legal knowledge or ability to prove it. Most homeowners who try to represent themselves in court against a foreclosure end up losing their homes.

A foreclosure defense attorney will analyze your case's circumstances and the facts to determine the best strategy for defending against the foreclosure action. Also, a lawyer can identify defenses that you might not recognize. So, if you really think you can keep your house by raising a foreclosure defense, you should hire a lawyer if you can afford it.

Foreclosure Defenses That Might Allow You to Keep Your Home

Some defenses that probably require the assistance of an attorney include the following.

• The loan servicer didn't follow proper foreclosure procedures. In a foreclosure, the foreclosing party must strictly follow state-specific procedures, with few exceptions. An attorney familiar with your state's particular foreclosure requirements can tell you if a procedural mistake is significant enough to warrant a case dismissal.
• The foreclosing party can't prove it owns your loan (called "standing"). If your mortgage loan was bundled and securitized, determining if the foreclosing party owns the loan can be challenging. An attorney can help you determine if you have a defense based on the fact that the foreclosing party can't prove that it owns your loan.
• Your loan servicer made a serious error with your account. Loan servicers often make serious errors when managing homeowners' accounts, such as misapplying funds, failing to credit payments to the account, or charging unreasonable and non-allowable fees. A foreclosure defense attorney familiar with servicer payment histories and communication logs, which can be hard to interpret, can help you figure out if the servicer made a serious error with your account that amounts to a foreclosure defense.
• You're in the military. The Servicemembers Civil Relief Act (SCRA), a complicated and extensive federal law, gives active military servicemembers protections against foreclosure and specific rights. Among other things, if you took out your mortgage before going on active duty, the servicer can't foreclose unless it gets a court order or a waiver from you.
• You need help with a loan modification. An attorney can help you with the loan modification process if the servicer is stalling or dual tracking your loan in violation of federal or other mortgage servicing laws.

Because it's very unlikely that you'll be able to get your home back after a completed foreclosure, you want to raise any defenses before the foreclosure sale. Having an attorney on your side gives you a better chance of saving your home from foreclosure.

A Foreclosure Defense Lawyer Can Tell You About All Loss Mitigation Options

If you have an FHA-insured, VA-guaranteed, or Fannie Mae or Freddie Mac loan, you get access to specific loss mitigation options that only apply to borrowers with these kinds of loans. A lawyer can tell you about each of your options and make sure your servicer considers you for these alternatives.

The particular options that are available in your particular circumstances often depend on effective, and, in some cases, persuasive, communication with your servicer and lender.

Foreclosure Laws Can Change

Foreclosure laws can change, and courts often decide new cases. These laws and cases could help with your situation. How courts and agencies interpret and apply laws can also change. And some rules can even vary within a state. These are just some reasons to consider consulting with a lawyer.

It's very difficult for someone who isn't a lawyer, or even an attorney with a different specialty, to keep current on all the foreclosure laws. Only an experienced foreclosure defense attorney will be up to date on all of the defenses and legal issues that can affect your case.

When You Might Not Need to Hire a Foreclosure Defense Lawyer

Depending on what you hope to accomplish, you might not need to hire a lawyer. You probably don't need to hire an attorney if you only want to stay in the home during the foreclosure process or buy yourself some extra time to live in the property.

You don't need a lawyer to apply for loss mitigation or attend mediation. And you might even find a way to keep your home by going through the loss mitigation or mediation process.

Applying for Loss Mitigation Option With Your Loan Servicer

If you want, you can submit a loss mitigation application to your loan servicer without a lawyer's help. Under federal law and some state laws, the servicer can't start or continue a foreclosure until it reviews your application. You might also get some time to appeal the decision.

However, keep in mind that if your goal is to save your home—not just delay the foreclosure process—an attorney can handle negotiations and present your situation in the best possible way to the servicer, which might increase your chances of getting a foreclosure alternative.

Participating in Foreclosure Mediation, If Available

Also, you can attend foreclosure mediation without hiring a lawyer if this kind of program is available. But if you want the process to be successful and not just postpone the eventual loss of your home, hiring an attorney to help you through mediation is probably a good idea.

What Does a Foreclosure Defense Attorney Do for You?

Again, you can choose not to hire a lawyer and represent yourself in a foreclosure. If you've already been served a foreclosure complaint, you must file an answer very quickly and accurately. You might also have to file motions and make court appearances. If you're facing a nonjudicial foreclosure, you'll need to file a lawsuit to stop the process.

But instead of doing these things yourself, an attorney can do them on your behalf. While you're allowed to defend yourself against a foreclosure without a lawyer, it's not easy. Courts don't treat pro se individuals any differently than they treat lawyers. You'll have to comply with specific court procedural rules, filing processes, and meet all deadlines.

Unlike making a claim in small claims court, for example, foreclosure defense is simply not something that most homeowners can handle on their own. Foreclosure defense lawyers already know how the foreclosure process works in your state and how to respond to these cases.

In addition, attorneys have the right skills to fight foreclosures. Good foreclosure attorneys have years of training and extensive knowledge about the law. They know how to apply it properly in court documents and during a trial.

How Does an Attorney Defend Against a Foreclosure Action?

Fighting a foreclosure in court depends on whether the process is judicial or nonjudicial. Either way, your attorney will file documents with the court, follow the rules of evidence, and attend court appearances.

To successfully defend your case, your lawyer will find, read, and understand complex documents such as statutes and court decisions. Attorneys go to law school for three years and review these types of documents every day while practicing law to develop the skills needed to effectively handle foreclosure cases.

In the course of defending against the foreclosure, your attorney will have to respond quickly in writing (in the correct format) to documents you receive from the lender's attorney, file certain papers, like motions, with the court, meet deadlines, and maybe even handle a trial.

When You Should Hire a Foreclosure Attorney

Hiring a lawyer as soon as you know a foreclosure is looming, perhaps even before the process officially begins, gives you more options. Given enough time, an attorney can probably help you work out a deal with the lender that will allow you to stay in the home or, if necessary, fight the foreclosure in court.

When You Should Look for a Foreclosure Defense Lawyer

Before officially starting a foreclosure, the terms of most mortgages and deeds of trust require the lender to send you a notice called a "breach letter." This notice lets you know that the lender plans to start foreclosure proceedings if you don't get current on the loan. To stop the foreclosure from going ahead, you must pay the overdue amount, including principal, interest, fees, and costs, typically within 30 days.

Once you get a breach letter, you need to start looking for a foreclosure defense attorney, especially if you can't catch up on your payments and want to keep your home. Once the foreclosure officially starts, your lawyer will have limited time to take the steps needed to defend against the proceeding.

What Happens If You Wait Too Long

If you wait until you're well into the foreclosure process, your attorney might not be able to do anything to help you keep your home. The chance to apply for loss mitigation might have passed, or you could have missed an important deadline.

Even worse, if the foreclosure ends before you've hired a lawyer, you probably can't get your home back (unless you get a right of redemption and can afford to redeem the property), even if the process had legal violations.

How to Find and Hire a Foreclosure Defense Attorney

Once you've decided that using a foreclosure defense attorney is in your best interest, your next step is to hire one. Consider talking to a few lawyers before deciding which one to hire.

If you can't afford an attorney to represent you throughout the entire process, consider scheduling at least one consultation. At a minimum, a lawyer can help you decide whether you should try to keep your home, as well as explain your legal rights and responsibilities to you.

Alternatively, if you can't afford an attorney, a legal aid office might be able to help you for free if you meet certain criteria. You can find a list of various legal aid programs on the Legal Service Corporation's website.