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Defend Yourself Against the Bank's Foreclosure Lawsuit

Every homeowner facing foreclosure, whether it is possible to save the house or not, should do everything possible to put their finances in order before being forced out of the property. In some states, though, the foreclosure process lasts only a few months, which is not always enough time to recover from a hardship and begin to get out of debt and establish a savings plan. This is why most borrowers should do everything they can, in and out of the courts, to delay the sheriff sale and eviction.

The best way to begin gaining extra time to save up, pay down other credit lines, or just find a new place to live after foreclosure is to fight the banks in the local court system. The lender can not take a house through foreclosure without using the county courts, and the (lack of) speed at which government organizations do business can work to the owners' advantage. Once the bank begins its lawsuit, the clock starts ticking -- but homeowners can also push give themselves months worth of extra time simply by playing by the court's own rules.

Once the initial lawsuit paperwork arrives, either via mail or served by a processor or county sheriff, homeowners need to determine how much time they have to file an answer. They are given a specific time period in which to file their answer to the complaint with the county clerk and serve a copy upon the lender. File too late and it is thrown out for not having been completed in time; file too early and the time for foreclosure is shortened. If the courts give defendants 28 days from the date of service to answer a complaint, homeowners may want to file their answer on day 26 or 27.

Then, when the lender gets its copy of the answer to the complaint, it may have another brief period of time to respond, and then the homeowners get a chance to respond to the bank's newest arguments. All of this can take several extra months where the legal process has not made much, if any, progress. As well, this is all before any trial or hearing is set to discuss the motions in front of the local judge in the case. Two extra months of living mortgage free can mean a great deal for homeowners attempting to get back on their feet.

Also, it may not even really matter what arguments the homeowners make in their answer. Although they should contact an attorney or do the requisite legal research on their own to make the best defense possible, if the goal is simply to drag out the process and make the bank prove every aspect of its case, there are a number of ways to delay and argue every minor point. Homeowners can argue that the court does not have proper jurisdiction, the bank did not file its paperwork in accordance with the rules of procedure, the lender does not have possession of the loan and has not standing to complain, and so on. Every argument will require an answer by the bank and will take weeks or months to be heard by the court.

But even this is not the end for each motion that the bank or homeowners file in the foreclosure lawsuit. Whenever the judge makes a decision, either denying or granting a motion, the homeowners can appeal that decision to the higher courts. These types of appeals are called interlocutory appeals and are typically used when a decision may be severely prejudicial to one party. Although it may cost a few hundred dollars to open a case with the appellate court, this process can take up to six months in some areas -- a few hundred dollars to live mortgage free for an extra half a year is certainly worth it for homeowners who need the time. And an appeal can be made on any court decision from pretrial motions to the final judgment.

If all else fails and the owners lose the case due to the bank's diligence in obeying all laws (not likely) or the corruption of the local courts (more likely), the last resort may be to file bankruptcy to stop foreclosure just a few days before the sheriff sale. This can delay the process for an extra few months via the Order for Relief (automatic stay) that prohibits creditors from engaging in any further collection activities after the bankruptcy is filed. In fact, it may be best at the end to discharge the mortgage in Chapter 7 proceedings, stay as long as possible in the house, and then never have to worry about a deficiency judgment.

Homeowners should not have as their primary goal buying a house, defaulting on the mortgage, and then living rent free for nearly a decade. But banks should also not be given a free pass to foreclose on houses without a fight from borrowers. At the very least, homeowners should contest the bank's ability to sue them and make it produce the documents proving it owns their mortgage. For too long, lenders have relied on rising property prices and borrowers unfamiliar with the government court system to make obscene profits through foreclosure; now, with home values in decline and more homeowners facing homelessness than ever before, it is long past the time for them to make a stand.

Article Source: http://articleaddict.com

Nick writes for the My Foreclosure Lender website, which provides loans and mortgage modifications to homeowners in foreclosure. Visit the site at www.myforeclosurelender.com/

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