How to Contest a Judicial Foreclosure

A judicial foreclosure is a foreclosure that is processed through the court system. The lender files a complaint stating the debt owed and why it should be able to foreclosure on the property. The respondent will be served with a notification of the pending foreclosure process by mail, direct service or publication of notice. Upon notification of the pending foreclosure action, the respondent will be afforded the opportunity to respond to the claim and assert a defense about why the action should not be taken.

Responding to Notice of Complaint

Upon notice of complaint, the respondent has 15 to 30 days (depending on state laws) to contest the lawsuit. The respondent should compile any documentation that proves the debt is not valid and that the lender has no claim against the property in question. Financial documents such as proof of payments to the lender and the mortgage papers should be presented as evidence to show compliance. These are also used to establish what type of defense is being presented. The grounds on which the respondent challenges the foreclosure process are critical. The stronger the defense and supporting evidence, the better the chances of winning.

Types of Common Defenses

  • The mortgage terms are unfair—In this circumstance, the terms of the loan are inconceivable. This means that terms of the mortgage were so outlandish that even the judge is shocked.
  • The respondent is an active-duty service member—Active-duty service members have special protections afforded to them. There are certain provisions that must be followed with foreclosure actions involving active-duty service members.
  • The lender didn’t follow state procedures in bringing foreclosure action--In order to bring foreclosure actions, the lender must follow set requirements (sending a notice, filing paperwork in the correct jurisdiction, etc.) in order for the action to proceed.
  • The lender practices predatory lending—Federal laws such as the Truth in Lending Act protect consumers from illegal mortgage practices by lenders.
  • The lender made a mistake in processing—Errors can range from crediting the wrong account to misstating the amount owed to reinstate the loan. It is important to reconcile payment records to challenge these types of errors.

This is a sample list of possible defenses that can be asserted. Remember, in order for the defense to be plausible, there must be strong evidence to support it. Also, review any applicable state or federal laws and contractual clauses that may assist in bolstering the defense. Given the seriousness of the proceedings, if the respondent is unsure, he or she should consult legal counsel.

After Responding to the Complaint

Once the response has been filed, a court hearing will be set. The hearing can take up to two months to take place. At this time, evidence can be presented and argued to counter the Lender’s claim. The respondent should have patience as the process is not quick. It may take several months before a judgment is entered. The best approach is to be prepared and have patience.