If you are facing foreclosure in Ohio, it's important to understand how the foreclosure process works. In Ohio, foreclosures are judicial, meaning they must go through court. The foreclosure officially begins when your lender files a foreclosure summons and complaint. But in some cases, your loan documents may require your lender to send you certain notices beforehand.
Read on to learn about the steps in an Ohio foreclosure case.
(For more articles on foreclosure in Ohio, visit our Ohio Foreclosure Law Center.)
Ohio does not have a specific statute that requires lenders to give you notice before it files a foreclosure case. However, your mortgage loan agreement may contain provisions that require certain types of notices, such as:
Notice of default. Your mortgage may have a provision that requires the bank to give you written notice of the default before it can call the entire loan due (called “acceleration”) and file for foreclosure.
Time to cure. The loan agreement may also allow you a period of time after the notice of default to bring the loan current by paying all the past due payments and charges before the bank can foreclose. This is called “curing” the default. Usually, you have at least 30 days to cure the default before the bank may file foreclosure.
Check your mortgage loan paperwork to see if it has either of these provisions.
The Foreclosure Summons and Complaint
In Ohio, a mortgage foreclosure begins when the lender files a complaint with the court. For more general information, read Nolo's Creditor Lawsuits: How the Case Begins.
The summons is a document issued by the clerk of the court. It will contain instructions as to when and where to file an answer, as well as other important foreclosure case information. If the court has a mediation program (as is the case in counties like Cuyahoga and Summit), it will include information on how you can participate in mediation, including a form to request mediation.
The complaint may be lengthy or brief. Usually, it will contain the following information:
- a statement that the lender is the owner and holder of the note and mortgage or otherwise has the legal right to enforce the note and mortgage (called “standing”)
- the type of mortgage loan you have with the lender
- the reasons why the lender is seeking foreclosure
- the interest rate and amount you owe to the lender
- if the lender claims that you defaulted on the mortgage loan, the date of default (sometimes called the date that the last payment is due on the note), and
- a description of what the lender wants the court to do (order the judicial sale of your home, grant deficiency judgment, etc.).
At a minimum, the complaint should have attached to it copies of the following documents:
- the promissory note, and
- the mortgage.
If the creditor who is suing you is not the original mortgage lender, then the complaint should also include documents evidencing the foreclosing creditor's ownership of that mortgage loan.
Responding to the Complaint
You should read the complaint and examine the documents attached to it very carefully. If you disagree with the allegations or discover that the creditor has failed to include necessary documentation, you can raise these issues in your answer.
Raising Defenses in Your Answer
The types of legal and factual issues that you can raise will depend on your particular circumstances. If you don't fiel an answer or if you don't raise a particular defense in your answer, you will be barred from raising it later (there are a few exceptions to this rule).
How Much Time Do You Have to Respond?
In Ohio, you have 28 days from the date that you are served with the summons and complaint to serve (or mail) your answer or other response on the foreclosing creditor's attorney. You must also file in court your answer or other response within three days of serving your answer on the creditor.
What Happens if You Do Not Respond?
If you do not file an answer, or file the answer late, then the court may grant a default judgment against you (this means the lender automatically wins).
Getting More Time to Respond
If you need more time to respond to the complaint, you can request that the court grant you an extension of time (sometimes called “leave to plead”) to file your answer. In some counties, you can get an automatic 30-day leave to plead if you and the lender's attorney agree to the extension in writing (called “stipulation for leave to plead”). Most courts and lender's attorneys will agree to granting you leave to plead, provided that you request it before the original answer deadline has expired.
Military Service Protection
If you are currently serving in the military when the foreclosure is filed, the Servicemembers Civil Relief Act (SCRA) gives you more time to deal with the foreclosure. If you request it in writing from the court, the proceeding can be postponed for up to nine months. (To learn more, see Foreclosures & the Military.)
What Happens if You Default?
If you missed the answer deadline and the creditor has filed a motion for default, you may still be able to object to the default if you have good reason for not answering sooner. For example, you did not receive proper service of the complaint or were ill. You only have a short period of time to object to the default motion after it is filed, sometimes less than a week. Some courts hold default hearings, and you can show up at that hearing and request to enter the case at that time. It is up to the court to grant your request.
Responding to Cross-Claims
Sometimes another lender or creditor will file a cross-claim in the lawsuit. This might happen if you owe more than one mortgage or another debt is secured by your home. You should answer the cross-claim separately in the same manner as you would in responding to the original complaint.
After the Answer is Filed
After you file the answer, the foreclosure case will then proceed as other lawsuits generally do. Your case may be assigned to a special foreclosure magistrate (such as in Cuyahoga County). At least one pre-trial hearing or status conference (or both) will be held, at which time you will get to discuss the legal and factual issues with the judge or magistrate. This is a good opportunity to discuss a possible resolution with the bank's attorney.
The lender may file a motion for summary judgment -- a request that the court grant judgment in favor of the lender because there is no real factual issue to go to trial on (for example, there is no dispute that you are in default on the mortgage), and it is legally entitled to foreclose. For more information, see Nolo's Summary Judgment. You must formally oppose the motion if you don't want the court to grant it.
If the court does not grant summary judgment to the lender, then the foreclosure case will eventually go to trial. At trial, you will have to prove your defense and claims. That means you will need to bring documents (cancelled checks, loan papers, etc.) and witnesses to support your defense.
Objecting to a Magistrate's Decision
If the case is presided over by a magistrate, he or she will make findings and recommendations. If your defense involves an important legal or factual dispute, you should request that the magistrate include separate “findings of facts and conclusions of law” in the decision. You must request this no later than seven days after the decision is filed.
If you dispute the magistrate's decision and findings, you may formally object by filing a written objection explaining how the magistrate's findings and application of the law were wrong. You have a limited amount of time to object to a magistrate's decision, no more than 14 days from the date that it is filed.
If there is no objection, or if the court overrules your objection, then the court will adopt the magistrate's decision in full or in part, usually within 30 days.
Foreclosure Prevention Mediation
Mediation may be a good alternative to defending the foreclosure through litigation. Many courts in Ohio offer mediation programs to borrowers who wish to keep their home, resolve the mortgage debt with a short sale, or explore other options with the lender. Some courts allow you to request mediation at any time before judgment is entered. Others give you a short period of time. In most cases, the foreclosure case is put on hold while you are in mediation. If the mediation is unsuccessful, then the foreclosure case is reactivated.
For more information, see Ohio's Foreclosure Mediation Program.
Sheriff's Sale of the Home
After the court has granted judgment for foreclosure in favor of the lender, the sale procedures will begin. The sale is conducted by the county sheriff.
Before a house may be sold in the foreclosure, certain procedures must be followed. Those procedures include:
- appraisal of your property by at least three disinterested persons
- advertisement of the sale in a local newspaper of general circulation for at least three consecutive weeks prior to the sale
- sale of the house is usually by public auction of the house, to ensure open and competitive bidding, and
- the house can not be sold for less than two thirds of its appraised value, which essentially puts a limit on the deficiency you may be faced with.
Your legal rights in the property do not terminate until:
- the sale is confirmed by the court, and
- a writ of possession is issued to the buyer.
In many cases, the lender is the successful bidder. However, it cannot displace you, change the locks, move your possessions, or take other improper eviction actions unless and until such time as it comes into lawful possession of the property, or you have abandoned it. If you believe your rights were violated, you should consult with a local attorney or legal aid office immediately.
Right of Redemption in Ohio
You have a right to redeem your house in foreclosure at any time, until the sale of the house is confirmed by the court. Redemption means that you pay off the mortgage loan in full, including all applicable fees (except attorney fees) and costs. For more general information, read Nolo's Right of Redemption Before Foreclosure.
If you wish to redeem the property, you should request an itemized written payoff from the lender's attorney, which is usually good for at least 30 days.
Right to Reinstate the Mortgage in Ohio
If you do not have the funds or financing to fully redeem the mortgage, you may still have the right reinstate the loan. That means that you can stop the foreclosure and cure the default by bringing the loan current.
Ohio law does not recognize a right of reinstatement. However, your loan papers may provide for reinstatement. Many do.
To bring the loan current, you will need to pay, by the deadline set forth in the loan agreement:
- all past due principal and interest payments,
- escrow shortages (if applicable)
- late charges, and
- attorney's fees and costs related to the foreclosure (unlike reinstatement).
As with the payoff, you should request a reinstatement quote from the lender's attorney.
Special Reinstatement Assistance
If your loan allows for reinstatement, but you are short on funds, you may qualify for additional assistance. As part of the federal Hardest Hit Fun, Ohio has a reinstatement program called Restoring Stability. You may qualify for up to $25,000 in reinstatement assistance. For more information, see Save the Dream Ohio.