If you are expecting to challenge a foreclosure, then there are some basic things that you will need to understand. All foreclosure cases are unique and different, but the first thing you want to understand is whether your foreclosure is nonjudicial or judicial.
Judicial vs. Non-judicial Foreclosures
A judicial foreclosure is an existing lawsuit, while a non-judicial foreclosure proceeds outside court systems. You have to file the lawsuit yourself for non-judicial foreclosures, making them the more complex and more expensive foreclosures to challenge. You will also have the burden of proving to the judge that the foreclosure should not proceed.
Judicial foreclosure is more straightforward. You file a written answer to the lawsuit and present your defence to the judge explaining why the foreclosure shouldn’t proceed. You will have to defend a trial and a motion for summary judgment. You can force the foreclosure to stop and save your home with solid evidence.
Fighting Judicial Foreclosure
It is the lenders who file the lawsuit to start a judicial foreclosure. A petition is delivered to your address and advises you on the steps. Should you contest the foreclosure, the petition gives you time to respond? Notably, the mortgagee has the burden of proof.
What Proof Does Your Lender Have?
- The deed of trust.
- Promissory note.
- Copies of notices sent by your servicer
- Signed agreements.
- Endorsements and assignments.
- Accountings of the payments you missed and those you paid
- Declarations or affidavits.
- The lender’s compliance with the foreclosure procedures
You will have to point out any omissions and errors in the procedures and paperwork so that the court does not accept the evidence and order the foreclosure.
File an Answer
Should you choose to file an answer to the lawsuit, you must object to it within a specified deadline. You must prepare the answer in the correct format with responses to your lender’s claims and defences. Admit or deny the allegations in every numbered paragraph. You can also ask your lender to prove their claims.
After Filing the Answer
Your lender can ask for a summary judgment where the judge will decide your foreclosure case without going through the trial. To oppose this motion, submit the evidence and arguments you have as a response. Should the court determine that your evidence is insufficient, the lender wins the summary judgment motion and the foreclosure proceeds.
Discovery
If you win the summary judgment motion, your case proceeds to a trial. However, both you and the lender must provide each other with the facts about the case before the trial during ‘discovery.’ During the summary of judgment motion, you might sometimes have to prove that discovery will uncover evidence that will help you justify your opposition.
Handling a Trial
During the foreclosure trial, your lender will try to prove that they have the right to proceed with the foreclosure. Your goal is to disprove this claim by presenting your case. The judge decides whether the foreclosure will proceed, sets a sale date, or dismisses the case when the trial ends. Get a foreclosure defense attorney to improve your chances of winning the trial.
Fighting Non-Judicial Foreclosures in Court
Such foreclosures do not proceed in courts. Your first step will be filing a lawsuit. Because your goal is stopping the proceedings, you will have the burden of proof. You will need to file a motion for TRO and a preliminary injunction to stop the foreclosure as you fight it in court. Besides, you can appeal for a permanent injunction.
Ask for a TRO
You need to prove that the foreclosure will cause you irreparable injury to get this granted. TRO can be granted without a formal hearing or notice, and the court is likely to grant the motion. In some cases, you will have to post a bond to protect your lender from economic harm should you lose the foreclosure case.
Preliminary Injunction
Here, both your and your lender’s documents are reviewed. Your goal is to convince the judge that the foreclosure should not proceed until you can prove it in the trial. The court looks at your chances of winning the trial and weighs the damage your lender suffers from missed payments to the damage you would suffer if the foreclosure is closed.
It is imperative to know when to fight a foreclosure. This article contains information that will help you prepare yourself to fight a foreclosure case should you feel that your lender did not follow the law.
Also, read: 6 Mistakes to Avoid When Selling Your Home
