To contest a judicial foreclosure, you have to file a written answer to the complaint (the lawsuit). You'll need to present your defenses and explain the reasons why the lender shouldn’t be able to foreclose. By responding to the suit, you’ll definitely get some additional time to live in your home. And, if you have strong evidence that the lender or servicer made a mistake in the foreclosure procedures—like by failing to send you a notice that state law requires or by improperly starting the foreclosure too soon—you might even be able to force it to start the foreclosure over, which will substantially prolong the process.
While every foreclosure case is unique and different states, and even different courthouses, have their own procedures, here’s a general step-by-step explanation of how you might fight a judicial foreclosure in court.
You’ll have a limited amount of time to answer the complaint. The time frame to respond is usually between 20 and 30 days, though it varies. Check the summons you received along with the complaint to find out how much time you have to file an answer in your case.
In your answer, you need to address all of the allegations in the complaint. For each numbered paragraph in the complaint, you should admit, deny, or say you don’t have sufficient information to admit or deny (and therefore you deny) the allegations contained in that particular paragraph. You may also ask that the lender prove its claims, like how much it says you owe and the fees it says are due. Be aware that if you admit an allegation, the lender doesn’t have to prove it. You’ll also need to raise any defenses and affirmative defenses in your answer, such as the lender doesn’t have standing (the right to foreclose), as well as any counterclaims, like the servicer violated federal mortgage servicing laws when you applied for a loan modification, if applicable.
Once you file an answer to the suit, the lender can’t get a default judgment (an automatic win) against you from the court. Instead, because the lender can’t get a default judgment, it will probably file a motion for summary judgment. This kind of motion asks the court to decide the case without a trial because the critical facts aren’t in dispute, any defenses you’ve raised lack merit, or you didn’t show wrongdoing on the part of the lender or servicer. You’ll have to file a response to this motion explaining your legal argument based on statutes and case law, and serve it to the other parties, if you don’t want the court to grant a judgment of foreclosure. The court may then hold a hearing on the matter.
If there's no genuine dispute about the material facts in the case—say you’re far behind in payments and you don’t have any valid defenses to the foreclosure—the court will likely grant the motion for summary judgment, permitting the lender to foreclose. But if the court thinks you’ve raised some compelling points, the judge will deny the lender’s motion and the case will move to trial. Following discovery, you’ll have to show the judge at trial why the lender shouldn’t be allowed to foreclose based on the issues you’ve raised, generally by questioning witnesses and presenting evidence.
At trial, if the lender convinces the court that a foreclosure is appropriate, the judge will order a foreclosure sale, and possibly set the sale date. But if you argue your case convincingly, the judge might dismiss the foreclosure, probably “without prejudice,” which means the lender can still foreclose—but it has to start the process over.
It’s impossible to guess exactly how long it will take for your case to wind its way through the court system if you decide to challenge the foreclosure, but the process is likely to last at least several months. In fact, in some states, a foreclosure can take years, especially when the borrower fights the foreclosure and has a valid defense.
But if you don’t file an answer to the suit, you’ll likely have a month or so before the court grants a default judgment and orders your home sold at a foreclosure sale.
If you decide to answer the foreclosure complaint without an attorney’s assistance and represent yourself in court proceedings, you’ll need to devote a substantial amount of time to conducting research, getting your paperwork in order, and preparing your arguments. Because the law is complicated and court procedures vary quite a bit, it’s a good idea to hire a lawyer if you can. If you can’t afford a lawyer, you may contact a legal services program in your area to find out if you qualify for free legal help.
My divorce agreement included a wage garnishments for child and spousal support. The garnishment for spousal support was supposed to end a few months ago. However, my employer continues to deduct it from my earnings and says they need a new wage garnishment order from the court in order to stop deducting it. They will not accept my marital settlement agreement as proof.
What forms do I need to file in order to have the spousal support deduction stopped per the terms of the agreement? I live in California.
Thank you!!
Hello!
I have 2 children (15 & 9) who live with their father. They lived with me about 6 years ago, but were taken away by CPS because his mother got involved.
Well, they don't actually live with their father. The father has custody but he is not living with them. He is living with and supporting his girlfriend and her
children instead of his own while my children are living with his mother - which is not a good situation. His mother is a psycho (she's previously been in a
mental institution). She is constantly screaming at the kids and has actually psychically abused my son (the 9 year old). She has people coming in and out
of her house all day and she just screams and argues with them. She is diabetic, so she never feels good enough to do anything for the kids, including cooking.
Her husband who works shift works at a refinery is the only one who cooks. She just feeds the junk food and buys them takeout everyday. She is also a hoarder
and her house is just absolutely disgusting. I do not want my children to live in this environment. My house is suitable and I can financially and emotionally
support my children, however the father will not give up custody because he has this dream of actually getting it together and buying a home for them, but he
has been saying that for years and hasn't done anything. Both of the children wish to live with me. His mother doesn't even let me see them (I have seen them
ONE time this entire summer!!) even though I have visitation with them every other weekend. She doesn't even want them calling me. She has taken away
my daughter's (the 15 year old) phone for calling me, MORE THAN ONCE! How ridiculous is that?? I called the DA in my county and he told me to call CPS and make
sure the case was closed (which it is, I called today) before doing anything else. What is my next move? I need to get them within the next week or two because
they need to be settled in before school starts and we also need to get their school clothes and supplies. I wouldn't mind taking them to do a few little things this
summer, either because his mother has had them locked up basically for 3 months and they haven't gotten to do anything. It makes me absolutely sick. In Texas if you're a certain age you can choose where you wish to live, right? If my daughter wanted to leave and come live with me before school started could she? She is 15. she is texting me saying that she is going to run away if I do not get her because she is being mentally abused and she's depressed/suicidal.
She was prescribed medications by her therapist (which her grandmother refuses to let her go to now) that her grandma won't let her take to prevent it since she is bi-polar, depressed, etc.
Is there any way that we can speed it up or can she come stay here (both kids if possible) while I try to modify the agreement? I talked to an attorney and they said 30 days for a modification.
We need to find some type of loop hole because I'm every worried about her. She is really going insane because of it. Her grandmother is crazy and her father doesn't realize what he's doing to the kids.