Some states offer homeowners who are facing a foreclosure the opportunity to participate in a foreclosure mediation program. In general terms, "mediation" is a form of alternative dispute resolution. Foreclosure mediation, specifically, is a process in which a homeowner, the loan servicer (on the lender's behalf), and a neutral mediator get together to try to work out a loss mitigation option, like a loan modification, and avoid foreclosure.
Participating in mediation doesn't guarantee you'll be able to prevent a foreclosure, but you might be able to figure out a way to keep your home or exit the property, like by completing a short sale or deed in lieu of foreclosure, under terms you can live with.
Many county courts in Ohio offer mediation. So, in an Ohio foreclosure, you can often request mediation as part of the process.
Foreclosures in Ohio are judicial, which means a court handles the process. The process officially begins when the loan holder (called the "lender" in this article) files a complaint (lawsuit) in court. After the lender files the lawsuit, you'll be served a copy of the complaint, along with a summons. The summons tells you about the suit, how to contact the lender's attorney, and the deadline to file a response to the suit, called an "answer." Generally, you get 28 days to respond by serving your written response to the lender's attorney. If you decide to respond to the suit, you must also file the answer with the court within three days of serving it. If you need more time to answer, you can file a motion with the court asking for an extension. And, if the court has a mediation program, the summons will likely include information on how you can participate in mediation, including a form to request it.
If you fail to answer the suit, the lender will likely get a default judgment. But if you file an answer, the foreclosure proceeds through the litigation process. The lender will likely file a motion for summary judgment asking that the court grant judgment in favor of the bank because no real factual or legal issues need to be dealt with at trial. If the court grants summary judgment, the judge will order the home sold at a foreclosure sale. If the court denies summary judgment, the foreclosure case will eventually go to trial, where you'll have to prove your case. If you're unsuccessful, the judge will enter a judgment that allows a foreclosure sale.
In February 2008, Chief Justice Thomas J. Moyer of the Ohio Supreme Court announced "The Foreclosure Mediation Program Model," the first of its kind in the United States. The model focuses on providing mediation for residential foreclosure cases in Ohio and allows courts to adjust the program to suit their needs and the needs of the community. So, many counties in Ohio have some sort of mediation available to borrowers facing foreclosure.
Here's how foreclosure mediation programs across the state generally work.
The lender typically provides a form for requesting mediation to the homeowner along with the complaint and summons.
When the homeowner requests mediation, the court sends questionnaires to the homeowner. The homeowner completes the forms and returns them along with financial information to the designated mediation department at the court.
The mediation department reviews the documents to determine if mediation is appropriate in the homeowner's situation. The mediation department then sends a status report to the homeowner and the court regarding whether mediation is approved. The court may order mediation if it so chooses. If mediation is approved, the mediation department will notify the homeowner and lender about the time and place for the mediation.
A mediation session will then take place in accordance with the court's alternative dispute resolution procedures. At the mediation, the mediator acts as a neutral facilitator. The parties discuss the borrower's finances and try to resolve the mortgage delinquency.
Mediation doesn't stop the foreclosure action or delay the deadline for the homeowner to answer the foreclosure complaint. If the homeowner wants to stop the process, the homeowner must officially request a stay (postponement) by filing a motion.
Typically, the homeowner will need to provide the following documents to the lender before the mediation:
The lender generally must provide:
The homeowner, the lender, and the lender's attorney must participate in the mediation sessions. During the session, all parties sit at the table as equals in a discussion. The homeowner may also bring an attorney to the mediation, but this isn't a requirement.
Potential outcomes of mediation include:
If the parties reach a voluntary agreement, they then memorialize the agreement in one of three ways:
Once the agreement has been memorialized, the lender will typically file a motion to dismiss the foreclosure case without prejudice. But if the parties can't come to a voluntary agreement, the foreclosure case continues on the trial docket.
In most cases, going to mediation is a good idea. Two counties in Ohio reported that 77% and 62% of foreclosure mediations were successful, meaning the outcome resulted in the homeowners keeping their homes or agreeing to give up their properties through a way other than foreclosure.
While participating in a foreclosure mediation program doesn't force the lender to give you a foreclosure alternative, it doesn't hurt to go through the process. The lender could be more likely to agree to a nonforeclosure solution when you go through official mediation procedures, or you might qualify for a loss mitigation option that you hadn't previously considered.
Even if mediation doesn't help you avoid a foreclosure, it will likely buy you some extra time to remain in the home without making any payments.
Foreclosure mediators are typically trained in mediation, as well as federal and state foreclosure laws, and also usually know about different community-based resources and mortgage assistance programs that could be available to help homeowners facing foreclosure. But they don't represent either party in the mediation process, and they can't give legal advice.
So, while you don't have to hire a lawyer to represent you in your foreclosure mediation, it's often a good idea. A lawyer can give you legal advice specific to your situation and advocate on your behalf, helping you negotiate a way to avoid foreclosure. A lawyer will also ensure that your legal rights are protected in the process. And, if you're thinking about filing a response to the foreclosure, or any other motion with the court, consider talking to an attorney beforehand to discuss the consequences of doing so and your various options.
You might also consider consulting with a HUD-approved housing counselor to learn more about foreclosure avoidance options.
For more information on foreclosure mediation programs in Ohio, go to www.supremecourt.ohio.gov/foreclosure. Click on "Ohio Foreclosure Mediation Contact Information by County" to obtain the contact information for your county. Also, see the Supreme Court of Ohio's foreclosure mediation FAQ website.