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.
Filing an Answer to the Lawsuit
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.
What Happens After You File an Answer
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.
How Long of a Delay You'll Get
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.
Consider Hiring a Lawyer
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.
