Fighting Your Foreclosure in Court

Contesting a judicial foreclosure is different than fighting a nonjudicial foreclosure.

The way you contest a judicial foreclosure is different than the way you must go about fighting a nonjudicial foreclosure. If your state requires a judicial foreclosure process, then it’s easier—and generally less expensive—to simply take an active role in the existing foreclosure lawsuit. But if your foreclosure is nonjudicial, which means it proceeds outside of the court system, you’ll have to file your own lawsuit to challenge the foreclosure. (If you don’t know which kind of foreclosure you’re likely to come up against, read Will Your Foreclosure Take Place In or Out of Court?)

Read on to get more information about fighting either type of foreclosure in court.

Judicial Foreclosures

If you live in a state that requires foreclosures to go through court, you’ll have the right to present your objections to the foreclosure to a judge for review. This is because, in a judicial foreclosure, the foreclosing party must file a lawsuit against you to get the foreclosure started. You’ll get notice of the suit when papers—called a summons and complaint—are delivered to (served on) you. The papers will advise you of the lawsuit and give you a period of time within which you must respond if you choose to contest the foreclosure. To fight the foreclosure, you’ll have to file a response—called an “answer”—with the court by a certain deadline. You must prepare your answer in the proper format, including responses to each of the claims made by the foreclosing party and any defenses you might have.

After filing your answer, the lawsuit moves to the discovery stage, in which both you and the foreclosing party will be able to obtain information using discovery tools—like written interrogatories (questions about case-related facts that the other side must answer in writing), requests for the production of documents (a demand requiring the other party to turn over specified documents), and depositions (the other side testifies under oath in front of a court reporter)—before a trial. But the foreclosing party might file a “summary judgment” motion, asking the judge to decide the case without a trial. You get the right to oppose the motion by submitting your arguments and evidence, but if the court determines that you don’t have evidence supporting a defense, the foreclosing party will win the motion, get a judgment of foreclosure, and be able to go forward with a foreclosure sale. If the judge denies the foreclosing party’s motion, the court will allow the case to proceed to trial. (Learn more about how to fight a judicial foreclosure.)

Nonjudicial Foreclosures

Because nonjudicial foreclosures proceed outside of court, you’ll have to file a suit in court against the foreclosing party to have a judge review the foreclosure. And you’ll have the burden of proof because you want the judge to stop a proceeding—the foreclosure—that is already authorized by the mortgage contract.

In the lawsuit, you ask the court to enjoin (stop) the foreclosure proceedings until a judge can hear your reasons as to why the foreclosure shouldn’t proceed. Then the case proceeds in basically the same manner as a judicial foreclosure. (Learn more about how to fight a nonjudicial foreclosure in court.)

When It Might Be Worth Fighting Your Foreclosure

If it’s clear that the foreclosing party failed to follow the law and, as a result, you were deprived of an important right, it may be worth it to fight the foreclosure in court. After all, if you could get the foreclosure dismissed or significantly delayed, you may be able to stay in your house much longer than you would otherwise.

You may have a decent shot at stopping or at least delaying a foreclosure if, for example:

  • the foreclosing party started the foreclosure based on false information, like if your payments were credited to the wrong party and you were never behind, or the servicer—the company that manages your loan account—substantially overstated the amount you had to pay to reinstate your mortgage, depriving you of your reinstatement rights under state law, or
  • you can prove that the foreclosing party didn’t follow procedural requirements for a foreclosure, like by failing to properly send you a breach letter, if required by the mortgage contract, or a notice of intent to foreclose, if required by state law. (Learn about other possible defenses to a foreclosure.)

Sometimes, though, filing an answer in a judicial foreclosure or starting a suit to fight a nonjudicial foreclosure isn’t always the best option. Say you’re facing a judicial foreclosure and you have an argument that requires you to file another type of pleading to preserve your rights, then filing an incorrect response might cause you to lose an important right. For instance, if the foreclosing party made an error, like failing to properly serve you with the foreclosure lawsuit, you can dispute the court’s jurisdiction by filing a motion to dismiss. If you win, the foreclosure has to start over. But if you file an answer, you “stipulate,” or agree, that the court has the right to hear the case and the foreclosure goes ahead. Litigation is complicated and most people fare better after getting assistance from an attorney.

Talking to an Attorney

You’ll most likely need to hire an attorney to be successful in fighting a judicial or nonjudicial foreclosure. Unless the lawyer thinks you have a very good case, you may not want to bother.

So, if you are facing foreclosure and think you might want to fight the foreclosure in court, consider talking to a foreclosure attorney who can advise you about what to do in your particular circumstances. Any given foreclosure or legal situation has many potential claims and defenses so it’s recommended that you seek the advice of local attorney or a legal aid organization to explore all possible options that may be available in your particular situation.

If you want to learn about possible ways to avoid a foreclosure—like with a loan modification, short sale, or deed in lieu of foreclosure—consider talking to a HUD-approved housing counselor. (Learn about using a HUD-approved housing counselor.)

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