By fighting a foreclosure in court, you’ll undoubtedly buy yourself some more time to live in your home. If you have solid evidence of wrongdoing, you might gain enough leverage to stop the foreclosure entirely and get a loan modification, or you might be able to force the lender to start the process over, which will substantially prolong the process.
The amount of time that you’ll be able to delay a foreclosure by opposing it in court depends largely on whether the foreclosure is judicial or nonjudicial. As you might expect, contesting a judicial foreclosure (one that’s already in court) is quite different than fighting a nonjudicial (out of court) one. It’s generally easier and less expensive to jump into an existing foreclosure lawsuit than it is to challenge a nonjudicial foreclosure, and disputing a judicial foreclosure might provide more of a delay. (To find out which type of foreclosure you’ll likely face, see our Summary of State Foreclosure Laws.)
In a judicial foreclosure, the lender (or subsequent loan owner) files a lawsuit to start the foreclosure. You’ll get a specific amount of time to respond to the complaint by filing an answer, typically around 20 to 30 days. If you don’t file an answer, the lender will get a default judgment against you from the court, which permits a foreclosure sale. But if you answer the foreclosure lawsuit, you’ll likely delay the action by a few months, especially if you have a convincing defense. Here’s why.
If you file an answer with the court, the lender can’t get a default judgment (an automatic win). So, the lender might then file a motion for summary judgment. (A motion for summary judgment is a party’s request that the court decide all or part of a case without a trial.) You also have the right to respond to this motion—and you have to do so if you don’t want the court to grant a judgment of foreclosure. The court may then hold a hearing on the matter.
After you respond to the motion for summary judgment, the court might still grant the motion if the important facts of the case aren’t in dispute—that is, you’re behind in payments, the servicer has appropriately followed all required foreclosure procedures, the lender has standing to foreclose, and you don’t otherwise have a defense to the foreclosure. The foreclosure then goes forward. But if you have a valid defense—and the court denies the lender’s motion for summary judgment—the case will proceed toward trial, at which you and the lender will present your evidence and arguments.
If your arguments come up short at trial, the judge will then enter a judgment and order a foreclosure sale (and perhaps set the sale date). But if you successfully make your case, the judge may dismiss the case. Typically, the court will dismiss the case “without prejudice,” which means the lender may still foreclose, but it has to start the process over.
It’s impossible to generalize precisely how long all this might take, but it’s likely to take several months. In some states, a foreclosure can take years, especially when the homeowner fights the action and has a good defense. But if you don’t answer the lawsuit, you’ll maybe get a month or so before the court issues a default judgment and orders a foreclosure sale to be held. (In a Connecticut or Vermont strict foreclosure, the judge can transfer title then and there, without a sale.)
In a nonjudicial foreclosure, the only way to raise a defense to the foreclosure is to file an action in state court asking for a court order (a temporary injunction) to stop the sale until you’ve had a chance to argue your case. (Learn more about how to fight a nonjudicial foreclosure in court.)
You might have to post a bond (a kind of insurance policy) to protect the foreclosing party from financial losses during the delay caused by the case. This requirement alone can be expensive and might defeat the purpose of your bringing the case if your primary goal is to buy some extra time to live in your house payment free. Also, if you hire a lawyer for this court process, which you’ll probably need to do, your costs will be considerable—possibly as much as several thousand dollars.
It’s really tough to guess how much time fighting a nonjudicial foreclosure in court might buy you. If you don’t have a strong argument, a court might dismiss your case just a month or two after you file it, which means you’ll have spent a lot of money for minimal delay. Of course, if you have a good shot at keeping your home, it could be worth the risk.
Fighting a judicial or nonjudicial foreclosure in court is difficult. Court procedures are confusing and the law is complicated, so it’s a good idea to hire a lawyer to help you. A lawyer can tell you whether you have any valid defenses to the foreclosure, how much of a delay you can expect to receive, and provide details about how the foreclosure process works in your state. 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 specific circumstances.
You may also contact a legal aid program in your area to see if you qualify for free legal services. Also, a HUD-approved housing counselor is an excellent resource if you want to learn about loss mitigation options.