Fight Your Foreclosure in Court

Learn how foreclosure court works.

If you’re in a state that requires foreclosures to go through court (see our Summary of State Foreclosure Laws to find out if you live in a judicial foreclosure state), you’ll have the right to present your objections to the foreclosure to a judge for review. If you’re in a nonjudicial foreclosure state, you’ll have to file an action in court against the foreclosing party (or file bankruptcy) to have a judge review the foreclosure. And at least in California you may not be able to obtain judicial review from a state court judge if you don’t have some evidence already in hand that something is wrong with the foreclosure or mortgage (in other words you can’t go to court in order to discover wrongdoing).

In judicial foreclosure states, you may have a decent shot at delaying or stopping a foreclosure, even if you don’t file for bankruptcy, if:

  • the foreclosing party brought the foreclosure based on false information (for example, your payments were credited to the wrong party and you were never behind, or the lender substantially overstated the amount you had to pay to reinstate your mortgage, depriving you of your reinstatement rights under state law)
  • you can prove that the foreclosing party didn’t follow state procedural requirements for bringing a foreclosure (for example, by failing to properly serve on you a notice of default required by state law)
  • the foreclosing party isn’t legally entitled to bring a foreclosure action (for example, state law says that only the actual holder of the promissory note can foreclose on the mortgage and the foreclosing party does not meet that description)
  • the person signing the affidavits in support of the foreclosure did not have personal knowledge of the information in the documents (in other words, the person signing the affidavits was a robo-signer)
  • the notary public attesting to the validity of a signature in the documents did not follow regulations governing notarization
  • Mortgage Electronic Registration Systems (MERS) is involved in the property’s chain of title and your state’s recording or assignment laws were violated as a result, or
  • the original lender or mortgage originator engaged in unfair lending practices through fraudulent behavior or by violating a state or federal law with regard to certain mortgage provisions or disclosures to borrowers.

More on going to court. For more detailed information on the approaches to fighting foreclosure in court that are covered briefly here, get Foreclosure Defenses: Non-Bankruptcy & Bankruptcy Remedies, by Craig Triance and Richard West (The King Bankruptcy Practice Series).â

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