When homeowners receive a bank's foreclosure complaint in the mail, they are usually given from fourteen days to a month to file an answer with the court. While the circumstances of the situation should determine how exactly the owners will respond to the lawsuit, there are a number of different options they may consider when fighting back against their lender's attempt to auction the house.
In most cases, though, the first thing homeowners may wish to do is consult with a local attorney to make sure that they are accurately following all of the local and state Rules of Procedure. It may be as good an idea to read the rules on their own and begin to formulate their answer to the complaint based on them. If the rules of procedure are not followed to the letter, there is a good chance the bank's lawyers will attempt to have the answer discounted or thrown out altogether.
The bank, in its original complaint, must lay out a number of issues and prove certain elements of its case to the court. For example, the bank must show that it has a legally binding contract with the homeowners, that the bank performed its end of the contract as agreed, the homeowners breached the contract, and that because of this breach the bank has suffered actual damages. If the bank fails to make its case on any one of these points, it may not be able to prove it is entitled to foreclosure of the house.
Recently, one defense against a certain element of the bank's case has becoming increasingly popular. Since the bank must prove that it has a contract between itself and the homeowners, some borrowers have used this to challenge the lender's ownership of the mortgage loan. If the lender can not show that it owns the loan, there exists no contract between the two parties, and the bank can not sue for foreclosure. The fact that many prime and subprime mortgages were packed up and sold off in slices and never had individual owners assigned to them from the huge pool of investors means that many mortgage are floating around with no real party to the contract who is due the monthly payments and has standing to sue the owners.
Rules of procedure also apply to the mortgage company and its attorneys when attempting to sue homeowners. If the borrowers can show blatant disregard or breaking of certain rules, the court may have no choice but to throw the case out of court for the time being. The bank may be able to start over from square one and bring the suit back into court, but at least the attorneys will be a little more careful next time and the homeowners will have bought more time to find a longer-term solution to foreclosure.
Certain jurisdictional issues may also come up, if the owners do not believe that the court in which the bank brought its lawsuit has the power to compel them to answer the complaint. In fact, it may be very difficult for any plaintiff to prove that the court has jurisdiction over the defendant, for the simple fact that the entire issue is based more on legal opinions than concrete facts. Proving jurisdiction factually, if the owners really want to stick the issue, may create problems for the lender's attorneys.
Of course, no legal defense may be good enough in the presence of a corrupt judge who railroads every homeowner through the system and throws out objections on any grounds possible. County courts, through the filing fees paid by lenders seeking foreclosure judgments, have a financial incentive to keep their clients, the banks, happy and get in and out as many cases as the court can reasonably handle, regardless of the economic health of the area's homeownership community. In such cases, homeowners should make their case but also know when to appeal bad decisions and when to give up and simply move on.
For borrowers who really want to stop foreclosure any way possible, answering the foreclosure complaint is a virtual necessity. Even if it just drags on the process for a few extra months, the additional time may present a final solution to the mortgage. But homeowners can also make a strong case in the courts and may have a good chance of having the bank's lawsuit thrown out for now. There are various ways to go about filing an answer, and borrowers should consult their county and states rules of procedure, but the widespread corruption and deception in the mortgage markets over the past years may make it somewhat easier to shoot down a bank's arguments.Tactics to File an Answer to the Mortgage Company's Foreclosure Lawsuit Complaint
The ForeclosureFish website has been created to help homeowners stop foreclosure on their properties while they still have time and resources available, as well as defend against the bank's lawsuit against them. The site examines various methods to use, such as short sales, stopping a sheriff sale, contesting ownership of the mortgage, and more. Visit the site to read more about how foreclosure works and the best ways to begin recovering afterwards: http://www.foreclosurefish.net/