Judicial foreclosures take place through the state court system. The lender (or the current loan holder, referred to as the "lender" in this article) files a lawsuit in the court in the county where the property is located. With a nonjudicial foreclosure, on the other hand, the lender doesn't have to go through state court.
In a judicial foreclosure, the three documents that the lender (the plaintiff) prepares to begin a foreclosure lawsuit are a complaint, a summons, and a notice of lis pendens.
The "complaint," sometimes called a "petition," for foreclosure lays out the claims of the foreclosure suit. It will describe:
The complaint will also state what the lender seeks, called the "relief," in a judgment from the court, namely that it wants to foreclose. For example, the complaint will ask for the right to sell the property and apply the proceeds of the sale to the mortgage debt. The complaint might also ask for a deficiency judgment if the proceeds at the foreclosure sale do not fully cover the total debt amount.
In a judicial foreclosure, a summons is issued for each defendant named in the foreclosure lawsuit. Typical defendants in a foreclosure lawsuit are the:
The summons informs the defendant about the right to file an answer to the suit and states how many days the defendant has to respond with an answer, usually 20 to 30. If you want to answer the complaint's claims and fight the foreclosure, you must file your answer within this time frame.
"Lis pendens" is Latin for "suit pending." When a lender starts a foreclosure, a notice of lis pendens is recorded in the county land records. The purpose of the notice of lis pendens is to inform the public that a lawsuit involving the property is pending.
The notice of lis pendens is typically a one- or two-page document that includes the legal description of the property and states that a foreclosure has been started.
If you decide to file an answer to the complaint, you need to address all of its allegations. For each numbered paragraph in the complaint, you should admit, deny, or say you don't have sufficient information to admit or deny (and therefore you deny) the allegations contained in that particular paragraph. You may also ask that the lender prove its claims, like how much it says you owe and the fees it says are due. Be aware that if you admit an allegation, the lender doesn't have to prove it. You'll also need to raise any defenses and affirmative defenses in your answer, such as the lender doesn't have standing (the right to foreclose), as well as any counterclaims, like the servicer violated federal mortgage servicing laws when you applied for a loan modification, if applicable.
In addition to answering the allegations, your answer may include defenses and affirmative defenses.
If you decide to answer the foreclosure complaint without an attorney's assistance and represent yourself in court proceedings, you'll need to devote a substantial amount of time to conducting research, getting your paperwork in order, and preparing your arguments. Because the law is complicated and court procedures vary quite a bit, it's a good idea to hire a lawyer if you can. If you can't afford a lawyer, you may contact a legal services program in your area to find out if you qualify for free legal help. It's also a good idea to talk to a HUD-approved housing counselor if you want to learn about alternatives to foreclosure.