Chloe Meltzer | July 21, 2022
Summary: Is Nationstar Foreclosure suing you for a past due balance? Find out how you can win against them in court.
Going through a foreclosure is never easy, and sometimes you have the chance to challenge a foreclosure. Depending on the type of foreclosure you are facing, you will experience the process in a different way.
There are two main types of foreclosure, judicial and nonjudicial. It is a lot easier and less expensive to jump into a lawsuit with a judicial foreclosure. This is because you can go into the existing lawsuit, versus challenging a nonjudicial foreclosure. If your foreclosure is nonjudicial, it means it proceeds outside of the court system, and you will need to file a lawsuit to challenge the process.
Every foreclosure is different, and each state has its own procedures, but this is how you should go about challenging each type of foreclosure.
File a written Answer to the complaint (also known as the lawsuit). You will need to present your defenses and explain why the lender legally cannot foreclose on your home. This may need to include defenses for yourself against a motion for summary judgment and at trial. You should bring strong evidence that the lender or servicer made an error in the foreclosure procedures. This might include failing to send you a breach letter, initiating the foreclosure too soon, or not following state foreclosure procedures. In this case, you may be able to force the foreclosure to start over or look into a loan modification.
When contesting a non-judicial foreclosure, the process will happen outside of a court's supervision. This means you will need to file an initial lawsuit to get the judge to look at your case. Opposite of a debt lawsuit, you will have the burden of proof because you want the judge to stop a proceeding. The proceeding will already have authorized the foreclosure that you signed when you took out the loan, so this is a bit more tricky.
In a judicial foreclosure, the foreclosing party is the lender, and they must file a lawsuit against you to begin the foreclosure process. When this begins you will be notified of the case by a summons and complaint, typically “served” to you. The documents will explain the lawsuit, the foreclosure as a whole, and give you a limited amount of time to respond. In this case, the lender will have the burden of proving to the judge that the foreclosure is valid and justified.
The lender will typically need to provide all of the documents signed when taking out the initial loan in question. This might include refinancing papers, the mortgage (or deed of trust), and a promissory note. It may also include any notices sent to you or signed agreements as backup proof. Unless you respond with information regarding that there are errors in omissions in the paperwork or procedures, then the foreclosure will be accepted, and a default judgment will be placed against you.
If you want to fight the foreclosure lawsuit, then you need to respond. This will give you the opportunity to state why the foreclosure is not legal, and you will need to do so between 20 to 30 days, or as specified on your summons.
This response needs to be filed in a specific method including format, responses to each claim, and your affirmative defenses. Never ad it to the lawsuit, so you should always deny or say you don't have enough information to respond to that area.
You should also ask the lender to prove their claims including how many payments you have missed, the fees you owe, and anything else you want them to prove. If you admit fault, then they do not need to provide you with proof for that action. This is why you should never admit any responsibility.
The lender might then file a summary judgment motion after you file the answer. This is essentially asking the judge to decide the case without a trial. You can oppose this when submitting your arguments. You should also send your response to the other parties, and then show up to the hearing. If you do not have enough evidence as dictated by the court then the lender will win and the foreclosure will continue. If the judge denies the lender's motion, the court will allow the case to proceed to trial.
Because nonjudicial foreclosures proceed outside of court, you will need to be the one filing the suit in court. In this case, the burden of proof will rest with you because you will be the one looking to have the judge stop the proceeding of the foreclosure. This is already authorized which makes it even more tricky.
The next steps include the following:
When asking for a temporary restraining order, you will need to show that you will suffer "irreparable injury" if the foreclosure happens. Even if the lender does not respond, the judge will most likely grant this.
If you file for a preliminary injunction, all of your documents will be reviewed. You will need to show that the lender broke some type of law or the terms of the deed of trust. This is when you convince the judge that the foreclosure should be put on hold. You can use witnesses and facts to back up your case.
It can be difficult to know when or when not to fight a foreclosure. If the lender obviously broke the law, then you should definitely fight the foreclosure in court. In addition to if you felt you were deprived of an important right. If you are judicial foreclosure and you have an argument that requires you to file another type of pleading to preserve your rights, you may not want to fight it. This can lead to more serious issues and lead to your loss of rights.
SoloSuit makes it easy to respond to a debt collection lawsuit.
How it works: SoloSuit is a step-by-step web-app that asks you all the necessary questions to complete your answer. Upon completion, you can either print the completed forms and mail in the hard copies to the courts or you can pay SoloSuit to file it for you and to have an attorney review the document.
"First time getting sued by a debt collector and I was searching all over YouTube and ran across SoloSuit, so I decided to buy their services with their attorney reviewed documentation which cost extra but it was well worth it! SoloSuit sent the documentation to the parties and to the court which saved me time from having to go to court and in a few weeks the case got dismissed!" – James
Here's a list of guides for other states.
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