Foreclosure FAQ's and Prevention

FORECLOSURE – RELATED FREQUENTLY ASKED QUESTIONS AND PREVENTION

FOR MORE DETAILED INFORMATION/EXPLANATIONS, CLICK ON WORDS IN BLUE

(Q) What do I do? I have just been served with a Summons and Foreclosure Complaint.
Respond in Writing and/or Serve and file an Answer and Affirmative Defenseswithin 20 daysof service.

(Q) What will happen if I do not do anything, but ignore it?
A Default and Default Judgment will be entered, and the Clerk of the Court will auction your property, usually within 25 to 30 days from entry of a Default Judgment.

(Q) Do I have to get out of the property 20 days after the summons is received?
No. However, once the property is auctioned by the Court Clerk you will be facing being removed from the property unless you vacate the property.

(Q) How much time do I have to get out once a foreclosure sale takes place?
As little as 12 days. You can also file an Objection To Sale to stop the transfer of title.

(Q) What will happen if I do not get out?
The Sheriff’s office will physically evict you and remove you and your personal property from the foreclosed property.

(Q) What can I do?
Respond to the Summons/Complaint yourself. As the homeowner, you have many different options. Hire an experienced and knowledgeable lawyer. Do not delay valuable rights and options may be lost.

(Q) What will the lawyer do?
File an answer containing Affirmative Defenses, if any. This can also be performed by the homeowner/Defendantwithout the expense of an attorney also. ( see http://www.foreclosureself-defense.com/foreclosure-info/foreclosure-prevention/for more info)

(Q) In the Answer, is a denial of the Lender’s Complaint all that I need to do?
Most often not. Your attorney must state all Affirmative Defenses. Failure to properly assert these defenses may result in being waived.

(Q) What are these Affirmative Defenses?
They are special defenses which must be specifically alleged. These typically include things such as truth-in-lending violations, usury, fraud and other specific types of improper conduct by the lender, which may defeat or partially defeat the lender’s claims presented.

(Q) Why are Affirmative Defenses different than just an Answer with Denials?
The Plaintiff has a much more difficult burden to obtain a “quick” or Summary Judgment of Foreclosure.When moving (asking) for Summary Judgment in cases where there are Affirmative Defenses, a Plaintiff (Lender) must do more than merely establish the case made by its complaint, it must also show the insufficiency, inapplicability or falsity of all the Affirmative Defenses so interposed. The burden of proof shifts to the Plaintiff/Mortgage company, especially if “predatory lending” or “robo-signingis alleged. (For list of alleged known robo-signers, see http://takeyourhomeback.com/?p=75)

(Q) How can an attorney just delaythe case without any real justification?
An attorney can’t delay solely for that purpose. However, in the full exercise of your legal rights, delays may result as a by-product of a proper defense. Usually these delays are caused by the Plaintiff not properly and promptly responding to your attorney’s lawful demands.

(Q) Does a lawyer automatically get more time to file an Answer and Affirmative Defenses?
No, the 20 days continues to run. If a Default is issued against you, it will result, at a minimum, substantial difficulties in getting the Default set aside. Also it will limit your attorney’s defensive arsenal otherwise available for him to use on your behalf.

(Q) What is “discovery” how does that effect the foreclosure process?                                             Discoveryis a very important part of Foreclosure Defense. Basically it stops the foreclosure process “dead in its tracks”. Most of the time, the mortgage company will not want to answer the discoveryquestion giving you more time in your home.

(Q) What if the foreclosure was prosecuted utilizing fraudulent documents (“robo-signed”)                                                                                                                                                    You then have viable defenses to the overall foreclosure ( see http://www.foreclosureself-defense.com/2011/01/new-point-of-foreclosure-contention-default-notice/)

(Q) What price will the property bring if it is sold at auction by the Court Clerk?
Typically it will sell for far less than its Fair Market Value. In most cases foreclosure sales are for the total amount of the mortgage, or even less.

(Q) Will I get any of the sales proceeds from the foreclosure auction?
Only if the property is sold for more than what is owed in total to the Plaintiff and all other mortgages and liens on the property.

(Q) Would this mean I would lose any equity I have in the property?
Yes.

(Q) If the property is sold for less than the total owed, can the lender collect the difference?
Yes, but only if the Lender also obtains a Deficiency Judgment.

(Q) Can I sell the property and get my money out?
Yes, you can sell or refinance so long as the Plaintiff is paid in full, prior to the foreclosure sale date. Because of a decline in the market value of property a “Short Sale” usually takes place. Many times, a lender would rather a short sale than a modification, see “Why Banks Aren’t Modifying Home Loans” http://www.foreclosureself-defense.com/the-library/videos/  

(Q) Do I have the right to bring the mortgage current?
Not unless your mortgage or mortgage note specifically gives you this right. However, many mortgage lenders often voluntarily consent to reinstatement.

(Q) What about Chapter 13 Bankruptcy?
A Chapter 13 Bankruptcy may allow you to make up the arrearages and reinstate your mortgage, over a period of time, usually 60 months. It means you make a regular payment and part payment each month until you are back current.

(Q) What about a Chapter 7 Bankruptcy?
Chapter 7 Bankruptcy may allow you to keep all of your exempt assets have the Bankruptcy Trustee sell the rest and apply proceeds to pay and satisfy all of your dischargeable debts. Also, Bankruptcy may be a legal and legitimate way to delay foreclosure, to protect your equity in the property.

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