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The New Bankruptcy: Will It Work for You?

Selling Your House in a Tough Market

Foreclosure: Articles and FAQs

Guide to Avoiding Foreclosure (HUD)

Avoiding Foreclosure: State Resources (HUD)

Foreclosure Survival Guide

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Foreclosure Survival Guide (1st Edition)

Judicial Foreclosure States

If you are in a state where foreclosures go through court (see your state’s page in the appendix), you typically will receive 10 to 30 days’ notice of the lender’s intent to file a foreclosure action. Once it’s filed, you will have 20 to 30 days to respond. If you file a response contesting the foreclosure action, it may take several months or even longer before the judge rules on whether to grant the foreclosure. Even if you don’t contest the foreclosure action, the sale usually won’t take place until at least a month after the judge issues the foreclosure order.

So you’ll likely have a minimum of two months from the first notice of intent to file the case to the date the court orders the sale to take place. You’ll have at least double that amount of time if you decide to oppose the foreclosure in court.

Contesting Judicial Foreclosure Actions: The Basics

One of the great benefits of living in a judicial foreclosure state is that you automatically have an opportunity to contest the request for foreclosure. For example, assume that in your state the lender must give you a notice of default that sets out the exact amount you must pay to reinstate your mortgage. To get a foreclosure order from the court, the lender must show that the amount stated in the notice of default is accurate. If the lender can’t prove this point—or you convince the judge that the lender failed to accurately credit one or more payments to your account—the judge might dismiss the foreclosure complaint, and the lender would have to start all over again.

The lender (the person filing the suit) has the burden of filing all the paperwork required to prove its case. All you must do is file a written response to the foreclosure complaint or petition, attend any hearings that are scheduled, and voice your objections if you have any. Merely filing a written response will probably achieve a delay of at least several months, because a hearing will have to be set for a judge to consider the points you raise. The more foreclosures that are occurring in that particular court, the longer it will take.

If you are contesting the foreclosure to try to stay in your house permanently, you almost certainly will want to hire a lawyer because of what’s at stake. But if your only goal is to slow the process down so you can stay in your house a little longer and save some money, you likely can accomplish this mission without a lawyer. (Ch. 7 explains in considerable detail how you can challenge the legitimacy of a foreclosure.)