You’ve been served and you weren’t playing basketball. If you’re a couple months behind in your mortgage, you probably knew it was coming. You asked for more time to pay the back mortgage payments. Instead, your lender starts threatening you with the F-word. You have two options when facing foreclosure: let your lender win or hire a foreclosure defense attorney and fight.
The Judicial Foreclosure Process
Whether you live in New York, Illinois, Florida or New Jersey, foreclosures are judicial, which means the lender must file a lawsuit in state court. The court allows a lender to start the foreclosure process after you miss three payments. However, most lenders wait for you to become more than three months behind. How nice of your lender, right?
Intent to Begin Foreclosure
Your lender may threaten you with foreclosure long before it goes to court. You’ll officially receive a notice from your lender called Notice of Intent to Foreclose. The notice informs you of the impending foreclosure and ways to avoid it by sending in:
- Missed payments.
If your lender is threatening you with foreclosure, and you receive this document or other legal documents, take them to a foreclosure defense lawyer to review. It will be helpful to have someone ready to fight your case way before you get into a courtroom. Your foreclosure defense attorney can negotiate with your lender to modify your loan, and the beginning of the legal foreclosure process is the prime time to hire a foreclosure defense lawyer.
Your Lender Files a Lawsuit
This is where the judicial process starts. Your lender goes to the local county court and files a lawsuit to start foreclosure proceedings. Once the complaint is filed you’ll be served with a Summons and Complaint. If you’re at this stage, don’t panic. You have time to fight. Talk to a lawyer and show him or her the Complaint. This is where your foreclosure defense options begin.
Your Opportunity to Respond
The summons and complaint provides you with between 15 to 35 days to respond to (and contest) the lawsuit. This is called filing an answer. The court doesn’t make you file an answer, but you definitely should. If you don’t respond, your lender will be granted a default judgment and you won’t get your day in court.
Responding to the foreclosure Complaint gives you an opportunity to explain why you have a legal right to keep your home. This is called a foreclosure defense. If you’re in this stage: Yes, call a foreclosure attorney.
Before your trial, there are several stages in the court process. If you are facing one of these situations, hire a foreclosure defense attorney:
- You’re notified of a Case Management Conference. This is where the court asks whether or not you and your lender are working on an out-of-court settlement. You don’t want to go into a conference without legal backup.
- You receive a Motion for a Default. A lender will usually file this motion to try to avoid going to trial. In other words, it is claiming you didn't respond and thus don’t have a defense to the foreclosure. Your attorney will dispute this motion with his or her motion.
- A court date is scheduled.
The following are some situations where you need to RUN to a foreclosure defense attorney:
- You receive an order granting Motion for Default - you did not file an answer in the required time, and are quickly running out of time.
- You receive a Motion for Summary Judgment - your lender is asking the court for permission to set a foreclosure sale date.
- You receive an Order Granting a Summary Judgment - a foreclosure sale date will be set, typically within the next 30 days you'll be given the date.
Hiring a foreclosure defense law firm doesn’t mean that everything will go smoothly. There is still a chance that your lender will win the foreclosure case, but a foreclosure defense attorney can usually prevent it. You may receive a foreclosure sale date, or auction date from your lender and your home could be auctioned. Those are the bad scenarios. A foreclosure attorney’s available solutions depend a great deal on how early they are involved in the foreclosure process. The longer you wait, the fewer the solutions that can be made available to you.
The point of hiring a lawyer is to give yourself a fighting chance. Lenders don’t always win foreclosure cases. That’s why they file summary judgment motions, convince you to sell or give up the deed. In addition to fighting foreclosures, you also need an attorney who handles loan modifications. Thus, when looking for a foreclosure defense lawyer, make sure he or she handles both.
**Last posted Wednesday, February 26, 2014, updated Thursday, May 28, 2015**