You'll learn that your lender has filed a foreclosure lawsuit against you when you're served a complaint and summons. Whether you file a response to the suit (called an "answer") is up to you, but you’ll need to do so if you want to preserve your rights and participate in the court proceedings.
Depending on state law and the circumstances, the lender might foreclose through either a nonjudicial process (also known as a power of sale foreclosure) or a judicial foreclosure process. In a nonjudicial foreclosure, the lender follows specific out-of-court steps set out in the state statutes to foreclose. In a judicial foreclosure, the lender files a lawsuit against you in court. You’ll receive a complaint, along with a summons giving you a deadline to file a written answer to the suit. The deadline to respond is usually 20 or 30 days after you receive the paperwork.
So, you’ll get the chance to file an answer in a judicial foreclosure, but not in a nonjudicial one. If you want to fight a nonjudicial foreclosure in court, you’ll have to start your own lawsuit.
If you want to respond to the suit, an answer is the document that you file with the court and serve to the other parties in the case. Your answer tells the court your side of the story.
In the answer, you must respond to the complaint’s allegations and you can ask that the lender prove its allegations, like how much it claims you owe under the loan documents. You should also raise any defenses—like the lender lacks standing to foreclose or that the foreclosure documents were robosigned—and counterclaims. Counterclaims are things you think your lender or servicer has done wrong.
Again, if you have a defense to the foreclosure or want to assert a counterclaim, you should file an answer to preserve your rights. You also might want to file an answer to get more time to work out a loss mitigation option, like a loan modification. Also, once you file an answer, you’re entitled to be kept informed of anything happening in your court case.
If you file an answer, the lender can't get a default judgment—an automatic win—against you. 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 is no dispute as to the important facts of the case, your defense lacks merit, or you didn't prove wrongdoing on the part of the lender. But if the court denies summary judgment, the case will proceed toward a trial. (To learn more about what happens after you file an answer, see How to Fight a Foreclosure in Court: Judicial Foreclosure.)
If you don’t file an answer by the deadline, the lender’s attorney will most likely ask for a default judgment. To get the court to set aside (annul) a default judgment, you’d have to file a motion and show good cause for not filing an answer. It’s very difficult to get a court to set aside a default judgment.
In addition, if you don't file an answer, you aren’t entitled to get notifications about what’s happening in your foreclosure case. The court may proceed with the foreclosure without your involvement or notifying you about the proceedings. You also will likely lose the right to assert any defenses you could have against the foreclosure. If you don't include particular defenses or counterclaims in an answer, you might not be able to bring them up later on in the foreclosure.
Of course, you shouldn’t file a frivolous answer, otherwise you might get stuck paying costs and expenses of the opposing parties, including their attorneys’ fees.
If you’ve received a complaint and summons notifying you that a foreclosure lawsuit has been filed and you're thinking about filing an answer, consider talking to a foreclosure attorney as soon as possible. A foreclosure attorney can tell you about potential defenses in your situation, prepare an answer to file in court on your behalf, and help you explore ways to avoid a foreclosure. (To learn why hiring a foreclosure attorney is often a good idea, see Foreclosure Attorneys: Why You Might Want to Hire One, What to Expect, and When to Fire One.)
If you can’t afford an attorney, a local legal aid office or legal services office might be willing to provide you with free or low-cost assistance. If you need information about ways to avoid foreclosure, consider contacting a HUD-approved housing counselor.