Whether or not you can get a jury in your foreclosure case depends on a several factors. You’ll have to need find out whether your state allows a jury in a foreclosure case, or some part of it, and in your situation. A foreclosure in most states is considered “equitable” relief. And that means no jury trial. Also, if your state does allow a jury trial, you’ll need to figure out if your foreclosure is nonjudicial or judicial, and perhaps file your own lawsuit just to get the foreclosure into court. And, even if you do have the right to a jury trial under state law, you might have given up this right in the documents you signed when you took out your loan.
If a mortgage borrower stops making the loan payments, that borrower will likely lose the property through a foreclosure, which will be either judicial or nonjudicial. The foreclosure type that the bank chooses will depend on the options afforded by state law where the property is located and the circumstances.
Nonjudicial foreclosures. In a nonjudicial foreclosure, a court isn’t typically involved at any stage of the process. Just to get the foreclosure into court, you’ll have to start your own lawsuit asking a court to put the foreclosure on hold pending a review of your case, and this still doesn’t necessarily mean you get the right to have a jury.
Judicial foreclosures. Even if your foreclosure is judicial, which means it goes through the court, you often don’t get the right to a jury. Foreclosures are generally considered an equitable action, which is tried before a judge, not a jury. (Find out more about the difference between judicial and nonjudicial foreclosures.)
Some states do permit jury trials in foreclosures or in some aspects of foreclosure suits. For example, you might be entitled to a jury regarding certain counterclaims. But sometimes these claims are severed (separated) from the foreclosure, which usually means the jury won’t decide issues like whether the foreclosure is right or wrong or if the bank has the right to foreclose.
Even if you do have the right to a jury trial in a foreclosure in your state, the mortgage contract that you signed when you took out the loan might have a clause—called a “jury trial waiver” clause—that waives (gives up) this right regarding matters related to the mortgage or promissory note. Florida mortgages often contain this type of waiver. (Learn the difference between a mortgage and a promissory note.)
If you’re facing a foreclosure and want to find out if you can get a jury to hear the case, consult with a foreclosure attorney in your state. Bear in mind that if state law gives you the right to a jury trial—and you didn’t waive this right when you signed the loan documents—you’ll have to demand a jury within the appropriate time frame. Again, talk with a local foreclosure attorney to find out the deadlines and options in your particular situation.