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.
death without a will
My father has recently passed away. There was no will. He has 4 kids, we have all been estranged from him for over 10 years. His eldest brother has been helping him out throughout the years and has been the sole contact within the family for him. I understand that without a will it will be sent to probate court. My uncle at the funeral had given my sister and I all of his personal belongings he gathered from his place. It's all bills and court documents...pretty much anything that needs to be sorted out. We didn't realize he was going to drop all this on us. We don't want to be the ones responsible for his personal matters. We haven't been in his life for over a decade. We don't want to be the ones appointed responsible for his estate. What actions do I need to do if any to make sure we are not responsible for this?
I need to know the laws in the state of Texas regarding judgements. Can they garnish the bank account of your company, if you own a company. If you are the sole owner of the company can they garnish your personal bank accounts. If you win a legal settlement and are going to receive money, can they take that money.
Thanks
How should I answer the criminal history question on an employment application?
I am attempting to apply for a job with a university, the following question was on the application. "Have you been convicted of, pleaded no contest to, or had an adjudication of guilt withheld for a felony or first-degree misdemeanor? If yes disclose details."
How should I answer this question? If I am required to answer yes, then what of the below must I disclose?
In the State of Florida:
In 1998 I was arrested for two felony charges. I pled NOT GUILTY. The case against me was later dropped and my co-defendants were charged. My records show a disposition of NOLLE PROSSED.
In 2001 I was arrested for felony DUI. I pled NO CONTEST. I believe the result was ADJUDICATION WITHHELD to a lesser charge of misdemeanor wreckless driving. Oddly no record of this case exists.
I found the information above via a free search on hillsborough county clerk of court website.
I also checked traffic citations and found nothing, although the traffic search may only be for un-adressed citations.
All of the above charges show up as arrests on the sherrif's office records website.
Thanks, RM
Child Visitations
I have sole physical care, custody and control of my 10 and 14 year old children. Their father only asks to see them during Thanksgiving and Christmas holidays and doesn't bother the rest of the year, but does see them when they are visiting his mother. He has had--name removed--DUI, assault charges against him and he and his live-in girlfriend drink and argue most of their time together. My children refuse to visit my ex, claiming that they don't like the drinking and also because of his girlfriend and her children. --name removed--Protective order filed prior to our divorce stated that we restrained from using drugs and alcohol prior to and during visitation. Can I be forced to make the children visit him? Can I also keep them from visiting their grandmother if she is drinking? When my children told their father reasons why they did not want to visit him, he yelled at them and called them names. My children also want to legally change their last name to my maiden name. Do they still need his permission to do this?