Defending Foreclosure Legal Guide

Posted about 2 years ago. Applies to Florida, 1 helpful vote



Deciding to Defend a Foreclosure.

Most times the only way to get a lender to negotiate is to stop paying for the mortgage. The lender wants to see that you are not bluffing. But the day you stop paying, or go into default, is the day the bank begins preparing for a foreclosure. Also in most circumstances, going into default is a pre-condition to doing a loan modification under a federal program. So you are stuck between a rock and a hard place, time is ticking and the bank may take the house at any time. Worse, the bank may take the house before you reach some kind of an agreement with it. Defending a foreclosure buys you time.


Answer the Foreclosure Complaint within 20 days.

The foreclosure process begins with a Complaint, which is served to you or someone over the age of 15 at your house. You have 20 days to answer. This means you should must write a legally sufficient Answer including Affirmative Defenses. The Answer must be filed with the Clerk of Court to be official. Filing this document tells the court that you intend on defending the foreclosure and a default judgment should not be entered against you. If you choose to fight the foreclosure on your own, make sure you read the relevant rules and statutes on the subject. Filing the Answer will also give you time to find an attorney to help you defend the foreclosure. Remember that no attorney can guarantee that they will save your home, what they can guarantee is that you will have more time and opportunity to work out a deal with the bank.


Show Up to All Hearings Set on the Case.

The second most important thing to note is, if you get a Notice of Hearing, attend the hearing. The notice will specify what the hearing will be on. The attorney for the bank should send you a copy of the motion on which the hearing is held. Research the issues ahead of time and prepare yourself for the hearing. Many times, it is difficult to win these motions even for an experience attorney let alone a homeowner representing him/herself, so consider hiring an attorney to take over the case. But if you do choose to do it yourself, do not despair if loose the hearing and remember that you have held the bank to their burden to present evidence at the hearing and you bought yourself time to work out a deal with the bank. You will only get a Notice of Hearing if you file the Answer.


Start Working Out a Deal.

Do not waste time during the foreclosure process. You must get to work. Contact the bank and see if you qualify for a loan modification or a short sale. Provide all documents requested. Make sure you provide the most recent pay stubs and tax returns. Check with the bank or its attorney often and be well-informed of the status of your deal. Be patient, banks are huge corporations that have a lot of bureaucratic processes; you can get through them by being persistent. Also, you must attend mediation, if it is scheduled.


Ask the Judge for a 120 Day Sale Date.

Usually, if you lose a hearing which disposes of the case the judge will set a sale date. The bank always asks for the shortest sale date possible somewhere around 30 days from the date of the hearing. You have the right to ask for a longer time period, although the judge makes the ultimate decision. Ask for 120 days, this will give you extra time to finish working out the deal with the bank or move out.


Think About Filing for Bankruptcy.

Contact a bankruptcy attorney to see if filing for bankruptcy can help you save your home.

Additional Resources

U.S. Department of Housing and Urban Development Making Home Affordable (An official program of the Departments of the Treasury & Housing and Urban Development) Legal Advocacy Center of Central Florida, Inc. (Basic Foreclosure Litigation Defense Manual) "Defending a Foreclosure" by Louiza Tarassova, Esq.

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Property foreclosure

If you miss too many mortgage payments, your lender can start foreclosure proceedings to take ownership of the property, but it has to follow your state's laws.

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