If you believe that you have a valid argument against a pending foreclosure, you may want to go to court to fight the lender. You can respond to the lender’s lawsuit against you if the lender is using the judicial foreclosure process, or you can bring your own action in court if the lender is pursuing a non-judicial foreclosure. Defenses can be very technical and fact-specific, but generally a homeowner may want to challenge a foreclosure if the lender failed to follow the mortgage terms or the law in their state. You would need to show that this failure infringed on your rights.
For example, you might be able to stop or at least postpone a foreclosure if you did not receive proper notice of the foreclosure from the lender. Both state law and the terms of your mortgage may provide rules for the lender to follow if it decides to foreclose. Or you may be able to argue that the foreclosure resulted from errors by your mortgage servicer, such as failing to properly credit your payments and reporting that you missed them instead. If you have a right to reinstate your mortgage under state law or the terms of the mortgage, you can hold the mortgage servicer accountable for providing you with the incorrect reinstatement amount. Read more here about common errors and abuses by mortgage servicers.
Fighting a Judicial Foreclosure in Court
You will receive a summons and complaint at the outset of the lawsuit that the lender files when it is seeking a judicial foreclosure. If you want to fight the foreclosure, you should read these documents carefully and make sure that you respond within the deadline provided. You also will need to follow any court rules for your response, formally known as an answer. You may be able to reach a settlement with the lender outside court if it feels that your defense has merit. If the lender does not feel that you have a strong defense, it may file a motion for summary judgment.
A summary judgment motion is a way to dispose of a case without going through a full trial. The party seeking summary judgment argues that there is no genuine dispute of material fact and that the opposing party cannot prevail under the law. You would need to provide evidence to oppose the summary judgment motion. The judge will determine whether your defense can survive summary judgment, which means that you can proceed to trial. If the judge does not believe that you can make a defense, they will grant summary judgment to the lender and allow it to proceed with the foreclosure sale.
Fighting a Non-Judicial Foreclosure in Court
While the lender starts the court process in a judicial foreclosure, the homeowner starts the court process in a non-judicial foreclosure. This has a critical impact on the burden of proof. The lender has the burden of proof in a judicial foreclosure lawsuit, while the homeowner has the burden of proof if they are bringing a lawsuit to stop a non-judicial foreclosure. This is because, in theory, the mortgage contract provides for the lender’s right to a foreclosure, so the homeowner would be asking the court to stop an otherwise permissible process.
The goal in a lawsuit against a non-judicial foreclosure is getting the court to issue an injunction against the foreclosure. This pauses the foreclosure until the judge rules on whether you have a defense or whether the foreclosure should move forward.
Understand Your Options in Advance
Going to court to fight a foreclosure may not be the right strategy in every situation. You should consider consulting an attorney who can advise you on whether you have a strong defense that makes the litigation worthwhile. An attorney also might be able to identify nuanced, technical defenses of which you might be unaware.
You should know that errors in your filings or arguments may result in inadvertently waiving certain rights or defenses. For example, if you respond to a foreclosure lawsuit on substantive grounds, you may lose the right to contest the court’s jurisdiction over the case. This might have been a basis to get the case dismissed if the lender had failed to follow the required procedures. Even if it did fail to follow the procedures, you could not get the case dismissed on this basis if you responded to the substance of the complaint.