How you contest a foreclosure depends on where you live because each state has it’s own laws and rules regarding real-estate. If your state requires the foreclosing party to sue you (judicial foreclosure), then it may be a little easier (and less expensive) to jump into the existing lawsuit. If your state allows foreclosures to proceed without court supervision (nonjudicial foreclosure), then you’ll have to bring your own lawsuit-a challenging and expensive process.
The right of redemption is an equitable right, foreclosure is an action in equity. To keep the right of redemption, the debtor may be able to petition the court for an injunction. If repossession is imminent the debtor must seek a temporary restraining order. However, the debtor may have to post a bond in the amount of the debt. This protects the creditor if the attempt to stop foreclosure is simply an attempt to escape the debt.
A debtor may also challenge the validity of the debt in a claim against the bank to stop the foreclosure and sue for damages. In a foreclosure proceeding, the lender also bears the burden of proving they have standing to foreclose.
If you are motivated to contest the foreclosure because you want to keep your home indefinitely, then hiring an attorney to explain not only the stated laws but also the specific documents that are necessary for your jurisdiction is the best course of action.
Foreclosures are broken into two categories, judicial and non-judicial. While the end result is usually the same, an auction of the home, the judicial foreclosure involves the court, but the non-judicial does not. In addition, a judicial foreclosure will take longer to complete, as it must be processed through the court system for the jurisdiction where the house is located. As the process unfolds, it is the responsibility of the bank or lender to petition the court to rectify the status of non-payment. This court action is known as lis pendens, which translates literally to “litigation is pending.”
In judicial foreclosure states, the foreclosing party must bring a lawsuit to get the foreclosure started. In the process you will be notified of the foreclosure lawsuit when papers called a summons and complaint are delivered to (served on) you. They will advise you of the lawsuit and give you a period of time within which you must respond if you choose to contest it. Also, the foreclosing party will have the burden of proving to the judge that the foreclosure is justified under the terms of the mortgage.
You can respond or not; it’s your choice. Either way you do respond, the mortgage holder will be required to prove that the foreclosure is legal (although if you don’t respond, the chances are excellent that the foreclosure will go through). The proof will typically consist of a thick bundle of documents containing various papers that you signed when obtaining or refinancing your mortgage. There will also be notices, signed agreements, internal accountings of payments both made and missed, and written statements under oath (called declarations or, if sworn before a notary public, affidavits) from lender and mortgage servicer officials who have knowledge of:
-your missed payments
-the lender’s compliance with your state’s laws regarding foreclosure procedures, and
-the circumstances through which your lender came to own the mortgage.
Surprisingly, as a general rule, if you don’t point out errors or omissions in the paperwork, the court will accept the papers as evidence that will support a foreclosure judgment and order for sale.
If you choose to respond, you will have the chance to inform a judge just why you think the papers are wrong and that foreclosure should not be approved. To contest the foreclosure, you can file a simple form, called an answer in most places. In it, you state your factual and legal arguments for opposing the foreclosure. In this form you must include all the reasons and facts that pertain to you mortgage.
If you have evidence of your own regarding these issues, you also can file your own sworn statements. For example, if the lender claims that you missed five payments, but you can prove (typically with canceled checks) that you missed only one, you would submit a statement under oath to that effect and attach your canceled checks.
The court clerk will set a date for a hearing, at which the judge will hear arguments on the paperwork submitted by both sides. After the hearing, the judge may:
-make a decision based solely on the paperwork
-postpone the hearing for a month or two to give the parties more time to gather more information. For example, if the paperwork filed by the foreclosing party doesn’t show authorization to bring the foreclosure lawsuit, the judge may continue the hearing for a month so that the foreclosing party can bring in additional documentation, or
-decide that the information in the paperwork is inadequate and schedule an “evidentiary” hearing a month or two later at which the parties will present their cases through live witnesses who can be questioned by the judge and cross-examined by the other side. For example, if there is conflict over missed payments, both you and an official from the mortgage servicer would testify, and the judge would decide which of you is most likely telling the truth.
After any later hearings, the judge will either order the foreclosure to go ahead (and in many states, set the sale date), or dismiss the case, sending the lender back to the drawing board. Thi will conclude the foreclosure process for your case.
Redemption periods have been written into the state codes for a great number of jurisdictions that provide judicial foreclosures. Such a period can be anywhere from six months to a year in length and provides you with additional time to gather the necessary funds to ensure continued ownership of your home. In fact, even after negotiations with the bank have failed or, further still, the house has been sold at auction, the redemption period provides one final opportunity to get the house back. Even in the eleventh hour of the redemption period, if you are able to secure the funds, you will legally be eligible to regain ownership of the home–and at auction price.