Defend Against a Mortgage Foreclosure Lawsuit

One of the many problems with the legal process known as foreclosure is the fact that the plaintiff in any case is typically an institutional lender with tens of millions, if not hundreds of millions or billions, of dollars in a bank account. Combined with a large mortgage portfolio, these banks can hire the best attorneys in the country in order to sue homeowners for foreclosure. But the very large size of these banks also creates inefficiencies and may lead to unjust foreclosures.

Homeowners, though, will find it very difficult to fight back against an unjust foreclosure, because of the prohibitive cost of hiring a law firm experienced in fighting banks against mortgage fraud practices. The Law does not readily accept amateurs who can not speak the confusing, ambiguous, empty language of the practitioners of The Law. Thus, even if homeowners are able to mount a defense to prevent from losing their homes, they may experience nothing but disappointment and defeat at the hands of some missed technical procedure. Justice in the court system is second to correct procedure and speaking the correct language.

Homeowners, though, should make every attempt to work inside the court system to avoid losing their homes, even if it means taking on a steep learning curve in a short amount of time. There may be no other way to defend against blatant mistakes made by the lender, and the judge will simply take the bank's word for it if the homeowners do nothing to answer the foreclosure complaint and do not show up at the court hearing. For foreclosure victims who are unable to afford their own legal counsel, they will have to defend themselves on their own.

The first time to start preparing a defense is as soon as the bank believes the homeowners to be in default of the loan. This may be long before any formal complaint is filed by the attorneys. But, when the foreclosure complaint is filed, the homeowners should have their answer already prepared, for the most part. Possibly the most important source for researching how to answer a complaint is through the county and state websites and find the court procedures. These will explain where, when, and how certain documents must be followed, and the general rules of the court. They should also give the homeowners various guidelines to follow when answering a complaint made against them.

Especially in a case where the homeowners believe they are being taken advantage of by the lender, the answer is vitally important to explaining their side of the story. They can state the sequence of events that have led to this lawsuit being filed, the fact that they paid on time, and that the bank lost or did not apply the payments as agreed. Of course, it is also a good idea to submit any supporting documents, such as canceled checks, hardship materials if appropriate, and payment records, among others.

When the lender files the foreclosure paperwork, the burden of proof lies on the bank to show that the homeowners are guilty of defaulting on the mortgage contract. The homeowners do not have to prove anything, but can cast doubt on the assertion that they are behind because of mistakes they have made, rather than due to mistakes made by the bank. If the homeowners have made all their payments and can show this, the lender will have a more difficult time keeping up an appearance of fairness and justice. When banks, through their own incompetence or greed, damage themselves, they can not hold their clients accountable for the damages.

Again, though, the best place for homeowners to start researching ways to defend against a foreclosure lawsuit is to read through the state and local court rules and procedures. The county clerk or courthouse often has copies of these that can be faxed or photocopied right in the county office. The clerks in the courthouse or clerk's office can also provide some general guidance, even if they can not provide legal advice directly. They can, though, give homeowners the basics of how to make sure the answer they file is not thrown out on some small technicality. Remember, it is procedure first and just second in the court system.

By: Nick Adama