Now we have got a Foreclosure Trial Book set up, and you know what it is that the Bank must prove to be successful in their foreclosure, how do we fight them?
We are going to start with the states that provide for a judicial path to foreclosure, and we will mostly use examples from Florida. This is because Florida’s Rules of Civil Procedure (the rules that both parties must follow in Court – unless you are in Lee County, Florida – more on this elsewhere) are based on the Federal Rules.
The second thing you need to know, after you have determined your legal status (remember our exercise in Part One – the Official Records Search) is what is the timetable you are facing.
In Florida, and most judicial states, to begin the foreclosure process in court, the lender must file a “Complaint” against you, and everyone who may have a right to ownership or possession of the land. The Complaint is supposed to set out each one of the elements that we listed in our previous article, along with a copy of the note and Mortgage. Private process servers who have been approved and appointed by the Court must serve it on each one of the defendants, usually in the past by a member of the local sheriff’s department, but more recently. If the Process Server cannot server a particular defendant, then the service is usually made by publication (discussed in another article).
At this point, time is working against you. Court rules require to file a written response to the complaint within the time period shown on the summons (usually 20 days) and to file a copy with the Clerk of the Court, as well as the PlaintiffThis written response is not optional You will be able to find a sample response on our website,
The Lender will also usually file a document called a “Lis Pendens” along with the Complaint, and this document is recorded in the official records of the County where the property is located. This document server to place the world on notice, that there is some type of litigation going on that my affect the title to the owner’s property. It must contain a legal description of the property, and state the nature of the dispute. The Lender files this so that the homeowner cannot sell the property to a third party, and not disclose the Foreclosure lawsuit. If he does that, the third party is charged with the knowledge of that lawsuit, as it is a matter of public record, and that third party, cannot now claim that he or she thought that they were buying the property free and clear. If they do go ahead with the purchase, not only will they necessarily take title of the property subject to the Mortgage in questions, but will in all likelihood be made defendants as well, and have to defend their actions. The “Lis Pendens” does not require a response, unless you are filing a Counter-Claim against the lender, more on that later.