In a judicial foreclosure, when a lender (the plaintiff) files the lawsuit to begin the foreclosure, there are three documents that the homeowner will receive notifying him or her of that lawsuit: a complaint, a notice of lis pendens, and a summons. Read on to learn the difference between these documents and how they relate to the foreclosure process.
(To learn more about mortgage terminology, see our Glossary of Foreclosure Terms.)
(Learn more about foreclosure, options to avoid it, defenses to foreclosure, and more, in Nolo's Foreclosure Center.)
Judicial foreclosures take place through the state court system. This means that in order to foreclose, a lender must file a lawsuit in the county court in the county where the property is located. (With a nonjudicial foreclosure, the lender does not have to go through state court. To learn more about the different types of foreclosure, visit Nolo's Judicial v. Nonjudicial Foreclosure page.)
(To find out if you live in a judicial or nonjudicial foreclosure state, check our Summary of State Foreclosure Laws.)
Understanding Foreclosure Lawsuit Documents
To fully understand how a judicial foreclosure works, you must understand the difference between a complaint, a notice of lis pendens, and a summons.
Complaint for foreclosure. The complaint (sometimes called a petition) for foreclosure lays out the claims of the foreclosure suit. It will describe:
- the mortgage
- the promissory note
- the property to be foreclosed
- the default
- the amount due, and
- the defendants, along with their interest in the property.
The complaint will also state what the lender seeks (called the “relief”) in the judgment from the court, namely that it wants to foreclose. For example, the complaint will ask for the right to sell the property and apply the proceeds of the sale to the mortgage debt. The complaint may also ask for a deficiency judgment if the proceeds at the foreclosure sale do not fully cover the total debt amount. (Learn more about deficiency judgments.)
Summons. In a foreclosure lawsuit, a summons is issued for each defendant who is named in the foreclosure lawsuit. Typical defendants in a foreclosure lawsuit are:
- homeowners (borrowers)
- judgment holders, and
- occupants (if any).
The summons informs the defendant that he or she must file an answer to contest the allegations of the lawsuit and states how many days the defendant has to respond with an answer. If you want to respond to the claims in the complaint and fight the foreclosure, you must file your answer within this time frame.
Notice of lis pendens. “Lis pendens” is latin for “suit pending.” The notice of lis pendens is recorded in the county land records and then a copy is served to the borrower, along with the complaint and summons. The purpose of the notice of lis pendens is to inform the public that a lawsuit involving the property is pending. The notice of lis pendens is typically a one- or two-page document that includes the legal description of the property and states that a foreclosure has been initiated.
How to Respond to the Summons/Answer the Complaint
If you choose to respond to the summons, you need to file a written answer with the court. It should address all of the allegations contained in the complaint for foreclosure. For each numbered paragraph in the complaint, you should admit, deny, or state that you do not have sufficient knowledge to admit or deny the allegations for that paragraph. (If you admit everything and don't have an affirmative defense, then the lender will win its case and will be able to proceed to foreclosure sale. However, if you deny an allegation, then the lender will have to prove that allegation is true in order to win the case.) In addition to answering the allegations, your answer may include defenses and affirmative defenses.
To learn about possible defenses to a foreclosure action, see our article Defenses to Foreclosure.
Learn more in How to Fight a Foreclosure in Court: Judicial Foreclosure.