When a foreclosure case is filed it is served on the homeowner by a process server. This is accomplished by hand delivering a copy of the complaint and summons to the homeowner. Service can also be accomplished by publication in a newspaper, which presents other issues, but that is another topic for another post. From the time that service is made as described above the homeowner has twenty days to file his response with the court.
At this point there is the issue of whether the homeowners response is legally adequate to deny the bank’s allegations. But, in any event the bank’s next step will be to file a motion for summary judgment and set the motion for hearing.
The purpose of a motion for summary judgment is to have a judgment entered in the bank’s favor without a trial. This process is meant to avoid delay when the parties do not disagree on the facts of the case. In the context of a mortgage foreclosure this means the homeowner agrees that there is a mortgage and he is in default in the mortgage. More importantly it means the homeowner agrees to how much the bank is claiming is owed and that the bank suing actually owns the note and mortgage.
Here is the trap. The court is prohibited from considering oral testimony at a hearing on a motion for summary judgment. All evidence must be in the form of, or authenticated by an affidavit, or be a verified response to a discovery request. Needless to say, the average homeowner doesn’t know this, or if they do, they do not know how to do it. When the homeowner shows up in court paperwork in hand prepared to present his side of the story, he will be told the court can’t consider what he has to say.
Its because of this that many homeowners are denied their right to present what may be valid defenses to a mortgage foreclosure action and, while the homeowner’s rights are technically observed by requiring the hearing, those rights are in effect denied because of the hyper-technical nature of the process.