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Must I add my Mortgage Servicer as a party when I Answer the Foreclosure Complaint?

Moorestown, NJ |

I have received a Notice of Intent to Foreclose from the attorney for the servicer. No complaint filed as of yet. The complaint, however, will list my lender as the plaintiff - of course. Throughout the course of servicing the loan, it is my servicer who has flagrantly violated numerous regulations. All of my defenses and counterclaims are against the servicer. So must I name and add the servicer as a party in my answer, or is the servicer, as agent for the lender, a party by default?

Yes, I know I need representation. I searched for over a year for legal assistance to no avail. This is despite the fact that 2 of my defenses (if won) allow for attorney fees and costs. Like most people, I cannot afford counsel.

Attorney Answers 2

Posted

You are required to file your Answer as to the party that sues you. Since the Servicer sent the Notice of Intent to Foreclose, you can be pretty much assured that they will be the Plaintiff in the Complaint, and they will rely on MERS or on a Power of Attorney to sue on behalf of the actual Lender to establish standing. So, assuming the Servicer is the Plaintiff, your defenses and counterclaims may be brought directly.

Let's assume for a moment that you are right and the Lender sues instead; you can still file a Third Party Complaint against the Servicer, which, in fact, is an excellent and under-utilized strategy. Conversely, if the Servicer sues, you can use Third Party Practice to bring in the Lender.

Awards of attorney's fees and costs are basically a myth. Judges will almost never award them. It would surprise me to learn that there are any attorneys out there who have taken a foreclosure case in hopes of getting paid through attorney's fees.

As an attorney, I hear people tell me every day that they cannot afford counsel. Lawyers do not work for free; in fact, we are quite expensive. But, it sounds like you fail to appreciate that there is little to no chance of successfully defending a legal case this complicated without a lawyer.

You have to weigh the pain of paying full price for competent legal counsel with the pain of losing your home in a sheriff's sale and facing all the collateral consequences that flow from that. You will likely experience one of these two pains. You decide which is worse.

At the very least, you would be wise to hire an attorney to tell you what your options are to try to negotiate a modification, deed in lieu of foreclosure, or a short sale. Even with a lawyer, a foreclosure defense does not solve your ultimate problem and give you back full ownership; so, such a defense is usually a bargaining chip to accomplish one of these other goals, to give you time, or as part of a larger legal/financial plan.

I highly advise against representing yourself. But, you are on the right track in one respect. The Answer is critical and will buy you a lot more time than simply failing to respond. Make sure you file a "Contesting Answer". You should visit the LSNJ site which has two resources you want to pay attention to: (1) Overview of the Foreclosure Process; and (2) Sample Answer and Sample Document Request. If you represent yourself, I'd strongly suggest filing a discovery document request with your Answer. Even before being served with the Complaint (i.e., now), you may want to send in a Qualified Written Request to the Servicer, a form of which is also included in the package. As Bankruptcy may become important, you may also want to look up resources provided by Max Gardner.

I wish you luck. If you do not heed my advice and try to represent yourself, be ready for the Judge to be unimpressed by your decision and opposing counsel to take advantage of your inexperience. Although I think it would be a foolish proposition and would cost you 10x to 20x more in time to have any hope of doing it properly, if you decide that is what you are going to do, I've included a guide on Civil Procedure in New Jersey, and I would recommend boning up on the New Jersey Court Rules and perhaps buying a copy.

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Asker

Posted

Thanks for your response. It is appreciated. As to your comment about it being foolish not to hire an attorney, I am always amazed when attorneys so easy make the claim that people should hire an attorney. As you stated, attorneys do not work for free. Who does? But this completely ignores the fact that I don't have the money. We all know we need counsel, but saying the words doesn't automatically & magically bring legal assistance. MONEY is still required and I can barely pay for my prescription meds. I don't expect to go into court and win against a foreclosure mill law firm, but that doesn't mean I should roll over & play dead either. I'm going to fight back. If/when I lose, I'll be prepared to move. Moving really won't be so bad. There is no MERS involved in my loan. The previous foreclosure (dismissed) came in the name of the lender. I am well aware the court does not allow attorney fees for defense of foreclosure - though they do now in NY. My comment was about attorney fees and costs being allowed under 2 of my counterclaims. I downloaded just about everything on the LSNJ site last year and have been studying/learning for quite some time. My computer is full of information from all my searches of the law, cases, Google Scholar, etc. I have done the QWRs. I have even purchased legal books from Thomson/Westlaw AND paid 5 cents a copy for the full record of other foreclosure cases filed in NJ. I have listened to countless oral arguments online. So I'm not jumping in totally blind. And my discovery is almost ready to go. In drafting my answer, I realized my claims involve the servicer & I wanted to get an opinion about that. When I looked through all the NJ cases I purchased, no one brought separate claims against the servicer, so it was puzzling. My biggest fear is that it will be things like this that might trip me up. But even so, I still can't pay an attorney. If I lose, I lose. On to my next station in life. I don't fail to appreciate that I stand a huge chance of losing. You're jumping to conclusions. I never said I thought I would win. Even when both parties have counsel, one of the parties will lose. know the court detests pro se. I DO fully appreciate that I don't have funds to hire an attorney. I must live with both realities.

John P Fazzio III

John P Fazzio III

Posted

If you send me an e-mail with all of your contact information to jfazzio@fazziolaw.com, and provide me with some of the key documents, I will have my paralegal contact you and see if we can work something out. I am not in a position to take a case like this pro bono. If you truly cannot afford an attorney, which seems to be the case, I will see if there is any additional advice I can give you based on a review of the Mortgage/Note/Complaint/QWR Responses (i.e., how strong of a case you may have). I assume you have already sought assistance from Legal Services of New Jersey.

Asker

Posted

Yes, I did contact LSNJ. You may know their funding has been drastically cut and many employees were let go. They are not taking cases. However, I was told by an attorney that they ARE taking cases, but must be very selective about which ones they defend due to being short-staffed. He felt they are only taking truly outrageous cases or those involving the aged, non-English speaking, or ARMs. LSNJ did agree to review everything I needed to submit to the court prior to submittal. She felt at least one of my defenses (yes, defense) was winnable based on precedent. In fact, she feels it possible the plaintiff may not want this defense to be heard in court for fear of unleashing many more cases. There are tons out there. She feels their counsel might fight hard to bury me before I ever get the chance to speak in court. So I'm not expecting to win, but am willing to give it my all. Thank you for your offer Mr. Fazzio. I do not yet have a complaint. Not filed. I check online every other day. Servicer failed to respond to 3 of my QWRs sent CMRRR. None of them were those long-winded, ridiculous QWRs found online. They were 2 pages or less and to the point.

Posted

I agree with my colleague here - you need counsel and proceeding without it is very risky. It's also very unlikely that you're going to find an attorney to take your case on contingency because there's just not a good likelihood that you'll win. It's possible but an attorney can't roll the dice on a case like yours so you're looking for a way to retain counsel for a fee. Check with the local non-profit legal organizations to see what's available, check with friends to see if there's a way to raise a little money, etc. but if you intend to proceed on your case, don't do it without counsel.

Good luck.

Evan A. Nielsen

1255 W. Colton Ave., #506 | Redlands, CA 92374
Main: 909.363.4658 | Fax: 480.304.3211
Evan.Nielsen@NLGLaw.com
www.NielsenLawGroup.net

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Evan A. Nielsen is licensed to practice law in California. The information provided here is for educational purposes only and is not intended as legal advice for a particular matter. This response does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult an attorney.

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I am surprised you would advise a homeowner to do absolutely nothing w/o counsel. The worse that can happen is I lose. It's not like I want to jump from an airplane without a parachute.

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