Last week we were served with a summons in regards to foreclosure on our home. We have 20 to file a written response. I called the attorney for the plaintiff and requested an extension to file a response because we have requested a HAFA Deed in Lieu of foreclosure and are waiting for approval. The attorney agreed to an extension of 60 days to file our answer. He sent me an email stating that he agreed to the extension. So how do I file this with the court? Someone at the Clerk of Courts office told me that an order needs to be submitted but they didn't know if I could do that or how?
If the other attorney has agreed, in writing, to an extension, that document, in this case and email, should protect you. It is the Plaintiff's duty to file a Motion for Default Judgment against you in the event that you do not file your Answer in time, and without that Motion, the Clerk will likely not take any independent action.
I would also recommend calling the Judge's Judicial Assistant (JA) and let him or her know about the agreement between you and the Plaintiff's attorney. If you call the Clerk's office and provide them with your name and case number, you can more than likely be connected directly to the Judge's chambers, where you can speak with, or leave a message for, the JA. If anything further is needed from you, JAs usually know what the Judge handling your case prefers, and will in most cases tell you. If you are a pro se Defendant, the courts generally give you a break and help you up to the point of giving legal advice.
I hope this information will be of some use to you, and I wish you best of luck in the HAFA Program.
Legal disclaimer: The information provided should not be taken as a substitute for legal advice from retained counsel. Mr. Jones does not intend to create nor does he consent to a formation of an attorney-client relationship with anybody reading this material, including the question poster, by virtue of posting on information on this website. If you are in need of legal advice, you should consult and retain local legal counsel.
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If you fail to respond within 20 days the bank can get a default against you, which means that you are admitting all of the bank's allegations as true. Now, being that you have the email from the attorney, if the bank actually went to the courthouse and got a default against you, that email should suffice to set the default aside. However, in he abundance of caution, I would file a written motion or request with the court within the 20 days. That will prevent the bank from getting a default against you with setting the matter for a hearing before the judge assigned to the case. This is true even without a court order. I would caution you though not to admit you are behind on the mortgage or that the bank suing you has a valid lien on your home. You want to say nothing other than requesting additional time.
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Residential Real Estate Lawyer
You can also ask the Plaintiff to stipulate to additional time, but you would have to file a joint stipulation with the court that bears the signatures of both parties.
This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.
If you do not answer the summons within the specified time period, the court will proceed with the case against you in your absence and a default judgment will be passed against you. If you want to extend the time period, you should visit the court that issued the summons and speak to the court clerk and request for a notice of motion for extension of time. The court clerk will provide you with a "fill in the blanks" form. Complete the form and submit the original to the court along with the appropriate filing fee, if any. Retain a copy for your records. Once you file the form, a judge will decide whether or not to grant you an extension. If an extension is granted, the judge will specify the new time period within which you must respond to the summons. Alternatively you could contact the Plaintiff's attorney and request for an extension. If the attorney agrees for an extension, you should get it in writing and file it in the court.
Since you already obtained a reply from the Plaintiff's attorney agreeing to the extension. Make sure you keep a copy of that email and print it and file it in court.
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Legal Disclaimer: The answer above should not be relied upon as legal advice. The information provided above is based on insufficient facts. No warranty is provided that the answer is correct. No attorney-client relationship has been formed with me until a signed written contract is complete. For an official opinion, it is advised that you seek legal counsel.