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Foreclosure Defense and Loan Modification Blog

What Is Final Judgment of Foreclosure, and How Can You Avoid It?

Posted by Maxwell Swinney

Saturday, September 2, 2017

A final judgment of foreclosure is an order a plaintiff/bank gets from the court, which allows them to sell a defendant's home for failure to pay the mortgage.A final judgment of foreclosure is an order in certain states that a plaintiff/bank gets from the court, which allows them to sell a defendant's home for failure to pay the mortgage.

Final judgment of foreclosure is one of the last dominoes to fall before the foreclosure sale, and a big loss for a homeowner who wants to keep their home.

Final judgment can be in rem (against the house), in personam (against the homeowner), or both. If the lender believes there is a deficiency on the in rem judgment because the home won't sell for enough to cover all the money they're owed, they can seek an in personam judgment against the homeowner.

The order of final judgment of foreclosure will detail the exact amount owed to the plaintiff for unpaid principal, interest, late and attorney's fees, and any other costs incurred as a result of the defendant's nonpayment. The homeowner may have the right to pay off the amount and keep their home before it is sold. 

How it gets to that point, when the sale date is set, who sells the home, and the homeowner's opportunity to reinstate the loan or avoid foreclosure varies by state. 

Different Procedures In Different States

Florida

In Florida, final judgment of foreclosure can come at a trial or by way of motion for summary judgment/final hearing. The foreclosure sale date will be set on the same day that final judgment is rendered. When that date comes, the sale will be conducted by an online auction. The homeowner has a right to reinstate the loan at any time before the sale. If the sale goes through, the buyer can move to evict fairly quickly and is not required to file a writ of possession.

Download a Florida Foreclosure Timeline.

Illinois

In Illinois, there will be an entry of foreclosure judgment and order of sale, which will grant a judgment for a certain amount of money and also assign a selling officer to set the sale date and conduct the sale. The selling officer is typically a private company, called The Judicial Sales Corporation, or the sheriff. There is a statutory 90 day redemption period after the entry of foreclosure judgment and order of sale. The homeowner has a right to reinstate their mortgage during this time by paying all the past due amounts, including interest, escrow, legal costs, and fees. If they do this, the case should be dismissed. If not, the sale will go through, assuming all other requirements have been met.

Download an Illinois Foreclosure Timeline.

New Jersey

Following entry of final judgment in New Jersey, the plaintiff must also submit a writ of execution to the sheriff, which authorizes them to sell the property in satisfaction of the final judgment of foreclosure. The writ of execution is typically, but not necessarily, granted on the same day as the final judgment of foreclosure. Foreclosure sales are carried out by the sheriff, and the date of the sale is subject to their availability in the county the property is located. The sheriff will issue a notice of sale to the homeowner. There is a mandatory right of redemption to reinstate before the final judgment is entered. After that, it's up to the bank if they want to let you reinstate or not.

Homeowners in the Garden State have two 14-day statutory rights to adjourn the sale of their home for any reason. They just have to go to the sheriff's office, pay a modest fee, fill out a form, and the sale will be delayed for 14 days. Most other states don't have that. Homeowners also have the right to file an emergent motion to stay the sale. But after that and the statutory rights have been used up and the sale goes through, there's nothing they can do to avoid losing their home.

Download a New Jersey Foreclosure Timeline.

Pennsylvania and New York

In Pennsylvania and New York, after final judgment and the foreclosure sale, there has to be a hearing to confirm the sale where the homeowner or their attorney can challenge the sale if they have a legitimate reason to do so.

Download a New York or Pennysylvania Foreclosure Timeline.

Meeting The Standard To Get Final Judgment

To get a final judgment a plaintiff typically needs to show multiple affidavits, including an affidavit of indebtedness in which the bank attests to the accuracy of the amount owed, an affidavit of reasonable attorneys fees and costs, an affidavit of amounts due and owing, and a loss mitigation affidavit..Taking someone's home is a very serious matter. The courts don't allow the bank to do that without thoroughly proving their case, and homeowners have the opportunity to tell their side of the story. Across the board in judicial foreclosure states, the burden of proof is on the plaintiff/lending bank to prove their case, and they have to follow the court's motion practice and procedures in that state.

To get a final judgment a plaintiff typically needs to show multiple affidavits, including an affidavit of indebtedness in which the bank attests to the accuracy of the amount owed, an affidavit of reasonable attorneys fees and costs, an affidavit of amounts due and owing, and more. The motion itself has to be filed with the original mortgage and note or affidavit of lost note and any assignments before the judgment hearing or trial. If the right documents haven't been submitted showing proper chain of title, the trial or hearing can be dismissed or continued.

The banks are also required to show a loss mitigation affidavit, which details what actions they've taken to try and help the homeowner avoid foreclosure. If the bank lied and said they called the homeowner and sent them information about loss mitigation programs and the homeowner never replied, when that's not true, that could be cause to oppose a judgment motion.

If the assignment of the mortgage shown at a judgment hearing or trial is different than the one contained in the original complaint, then that motion can be attacked. It's a violation of the defendants right to due process because the bank is required to file an amended complaint and introduced the new note into evidence, which the homeowner would have had an opportunity to respond to. If the bank doesn't meet the requirements to submit proper documents into evidence to gain a judgment against the homeowner, then it's not valid.

Avoiding Foreclosure After Final Judgment

Obviously if you want to keep your home, you want to avoid having final judgment entered against you. When you're served a summons and complaint, you should answer the complaint and deny the bank's allegations and raise your own affirmative defenses. That can slow the foreclosure process down and give you more time to work on saving your home.

Hopefully you can find a solution before a final judgment is entered and a sale date is set. However, even if you don't, all is not necessarily lost. We have helped many clients keep their homes after final judgment was entered and they had a sale date, though it is tougher and the chances of failure are greater.

Getting A Loan Modification

If you submit a complete loan modification application, and it is accepted as complete and under review at least 37 days before the sale date, the foreclosure sale isn't supposed to go through, per federal rules. The bank can choose to stop the sale date if they want to inside of 37 days, but they're not required to.

A problem is that when an application is considered complete is up to interpretation. Sometimes a mortgage servicer will point to the slightest problem with a Request for Mortgage Assistance and say that it's not complete, deny it, and refuse to cancel the sale. If the sale date is in the near future, you may not have time to make the changes, and the home will be auctioned off.

So it's very important to start foreclosure defense and work toward toward a permanent solution as soon as possible. Hire an experienced attorney to defend you from foreclosure and help you apply for a loan modification as soon as you know you need help. The legal process having to do with foreclosure can be confusing to anyone who doesn't have extensive experience with it, and the consequences of failing are losing your home for good.

 

 

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Images courtesy of Sira Anamwong at FreeDigitalPhotos.net

Topics: foreclosure, final judgment

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Amerihope Alliance Legal Services is a leading loan modification and foreclosure defense law firm with attorneys licensed in 5 states. We have helped over 7,000 homeowners fight back and keep their homes.

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