If you're struggling to pay your mortgage, you can easily handle some things on your own to avoid foreclosure. For example, you can apply for, and hopefully get, a loan modification to make your payment more manageable on your own (or with the help of a HUD-approved housing counselor), or sell your home through a short sale with the help of a real estate agent. But fighting a foreclosure in court isn't usually one of the procedures that lend itself to self-representation.
Good foreclosure attorneys have special skills developed over three years of law school and many years of practical experience, as well as extensive knowledge about the complicated area of foreclosure law. Only an experienced foreclosure attorney will be aware of all the possible defenses in your situation and know the proper way to use them to fight a foreclosure in court.
If you want to defend against a foreclosure successfully, it's best to hire a lawyer. But if you can't afford one and you want to fight the foreclosure on your own—called representing yourself "pro se"—the way you go about it depends on whether the process is judicial or nonjudicial. Here are the basics that you'll need to know.
"Foreclosure" is the legal process that the lender (or a subsequent owner of the loan) uses to sell a home and pay off the debt if the homeowner doesn't make the mortgage payments. Depending on the state you live in and your circumstances, the lender must either:
To learn the foreclosure process in your state, see our Summary of State Foreclosure Laws article with links to each state's foreclosure procedures.
In a judicial foreclosure, the lender files a lawsuit in state court. You'll receive a foreclosure complaint, petition, or similar document, along with a summons. The summons will notify you about your rights and say how many days you have to formally respond in writing, called filing an "answer," to the complaint, usually 20 or 30 days.
An answer, which you must file with the court and serve to the foreclosing party, should include the following.
If you don't file an answer, the lender will ask the court for a default judgment, which means you automatically lose the case. If the court grants a default judgment, the lender will be able to sell your home at a foreclosure sale.
Depending on the laws of your state, the lender might also be able to get a deficiency judgment.
On the other hand, if you file an answer, the lender can't get a default judgment. Depending on the strength of the answer, the lender might then file a motion for summary judgment. In a motion for summary judgment, the lender asks the court to rule in its favor without a trial or any further legal proceedings because there's no dispute about the important facts of the case, or your defense lacks merit, or you haven't shown any wrongdoing by the lender.
At this point, you'll need to file your formal written response to the motion for summary judgment, or the lender will win the case. The response must contain your legal argument based on statutes and case law. Be aware that motions for summary judgment can be difficult to beat without the help of a knowledgeable attorney. If the court grants summary judgment, then the foreclosure will proceed. But if the court doesn't grant the lender's motion for summary judgment, the case will go to trial.
"Discovery" is the process where the parties ask for information and documents from each other before the trial through depositions and interrogatories, for example. During discovery, you may ask the lender to provide documents or other evidence that you need to back up your case. But you must do so within the proper time frames and in the correct format. You might have to respond to the lender's discovery requests as well. Discovery can also lead to other motions and court hearings if you and the lender disagree about what should be provided.
Borrowers sometimes make discovery demands in their answer or when opposing a motion for summary judgment on the basis that discovery is necessary to expose specific facts about the case or facts that the lender claims are true. But you'll have to show that discovery might lead to relevant evidence or that the facts you need to justify your opposition to the foreclosure are exclusively within the knowledge and control of the lender. Otherwise, the court might go ahead and grant summary judgment.
At trial, you'll have to show the court why the lender should not be allowed to foreclose based on the reasons you've raised. In all likelihood, the trial will involve questioning witnesses and presenting evidence in court. You must comply with the formal rules of evidence and court procedures. The judge will then either:
With a nonjudicial foreclosure, the foreclosure will not go through the court system, so you won't receive a complaint or have an opportunity to file an answer. To fight a nonjudicial foreclosure, you will need to file your own lawsuit asking a court to stop the foreclosure.
Ultimately, if you decide to proceed on your own in court, prepare to devote a significant amount of time to the case. You'll have to do quite a bit of research to have any chance of success. The rules and procedures that you must follow are different in each state and sometimes in each court. Your research must cover not only foreclosure statutes and relevant court decisions but also rules of civil procedure (the detailed rules on what should be in your complaint, how to file it, when and how to file motions), rules of evidence, and more.
State and court rules also set forth deadlines that you must meet, which means you might have to complete your research (on possible defenses, for example) and learn how to properly lay them out in your answer or other court documents in a fairly short amount of time.
Again, you'll most likely need to hire an attorney to successfully challenge a foreclosure in court. If you can't afford to hire a lawyer to represent you throughout the entire foreclosure, consider scheduling a consultation to learn more about options in your particular circumstances. If you can't afford a lawyer at all, you may contact a legal services program in your area to find out if you qualify for free legal help. You can find a list of various legal aid programs on the Legal Service Corporation's website.