You’ve received a foreclosure complaint. Before you have a panic attack and believe you are going to lose your house, call an attorney. It is important to seek legal counsel and learn your rights because this may be complicated and stressful. To help relieve some of that stress, we will go into detail about the process.
First of all, a judicial foreclosure complaint outlines the lender’s claim underlying the lawsuit. The complaint typically describes the mortgage, the promissory note, the property to be foreclosed, the default, the amount due, and lists the defendants and their interest in the property. The complaint will also ask for relief that the lender is seeking. At the same time, a notice of lis pendens is filed with the county clerk to provide notice to the public that a foreclosure suit is pending. Finally, a summons will also be served to inform the borrower that an answer must be filed in court if the foreclosure will be contested.
The borrower will need to hire an attorney to file an answer to the complaint responding to every claim made by the lender in its complaint. The borrower usually has between 20 to 30 days to answer. Responding to every claim consists of admitting, denying, or stating that you do not have knowledge of each claim. An attorney should assist you in answering the complaint because if you file an answer incorrectly you could ruin your only chance to defend. An attorney could inform you that you do not even need to respond because the lender had a blatant error on the summons and you may be able to get the lawsuit completely thrown out.
When answering the complaint, besides responding to the claims found in the complaint, you can assert defenses, affirmative defenses or counterclaims that you may have by law. Defenses could be legal reasons for not paying such as an agreement you made with the lender to pay at a later time. Affirmative defenses, on the other hand, build your case on why the lender should never have filed this complaint against you. For example, if you paid the past due amount and are caught up, you should put that as an affirmative defense. If you respond, the lender will have to prove its case before the court in order to receive a foreclosure judgment.
If you decide to fight the foreclosure, the lender will then have another 20 to 30 days to file an answer to your counterclaims. After that, it can take a few months until the judge issues a foreclosure order or dismisses the foreclosure. If the judge issues a foreclosure order, the borrower will be notified of when and where the sale will take place.
There is also what’s called a nonjudicial foreclosure, which allows the lender to sell the property without any court oversight. To fight a nonjudicial foreclosure you must file a lawsuit and raise your own claims. The lender will then have 20 to 30 days to respond to the complaint and the lawsuit would continue in the same way as the judicial foreclosure.
If you do not wish to fight a foreclosure you do not need to respond and a default judgment will be entered against you. A default judgment means that you lose the case and the lender will be granted the relief sought in the complaint. The lender will receive a foreclosure judgment and will be able to sell the property. The borrower will still be notified of when and where the sale will take place.
All in all, the process can be very long. If you fight the foreclosure it will take at least a few months to receive an order, and if you lose, you will receive a notification of the sale. If you do not fight a judicial foreclosure, then once the 20 to 30 days to respond have elapsed you will receive a notification of the sale.
If you receive a foreclosure summons do not hesitate to contact our knowledgeable attorneys as it is a time-sensitive and fragile process. You can schedule an appointment with one of our knowledgeable attorneys by calling (786) 837-6787 or emailing us at info@epgdlaw.com.
*Disclaimer: This blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*
