When homeowners receive the lawsuit paperwork in the mail or posted on their property indicating the bank is beginning the legal action of foreclosure, their most common reactions seem to be either to call the bank and desperately try to work something out, or simply avoid the problem for as long as possible. In any case, they usually have no idea how to file an answer to the complaint and little money to hire an attorney to help them defend their home.
But borrowers can file an answer to the bank’s complaint on their own with just a little bit of research into how the courts work and some of the applicable law terms. Much of the legal process is designed to be as confusingly complex as possible, with one trap to fall into after another. But homeowners can still use the system to their own advantage, even without having to hire a lawyer (although this is recommended just to make sure the paperwork is filled out correctly and filed in the correct manner).
When it is time to file the answer to the foreclosure lawsuit, the actual answer has three major parts to it and a fourth part that is used if applicable. The first is a statement denying or admitting each of the allegations the bank makes in its complaint on a line-by-line basis. These statements can be reasonably short and to the point, referring back to the initial complaint paperwork. For example, the borrowers may state that, “Defendant denies the allegation contained in Paragraph 4 of the complaint,” and have stated their position succinctly enough.
The second major part of the answer is defenses the homeowners are relying upon to make their claim that the bank should not have brought the lawsuit into court to begin with and why the allegations made in the complaint are simply wrong. These do not have to be long, drawn-out defenses using hundreds of words; rather, they should be made as plainly and clearly as possible. The discovery process and trial will provide opportunities to obtain more evidence and present more detailed arguments.
The final major part of the answer is affirmative defenses the borrowers raise. These are effectively “Yes, but” statements, in which the lender may not be wrong in bringing the lawsuit, but judgment should not be awarded to the bank anyway. These can typically include procedural violations, notice violations, and violations of federal or state laws that required the lender to complete some task before it is able to sue. Instances of mortgage servicing fraud, like forced insurance or escrow account misuse, may also be defended here, because the foreclosure may look valid on its face but still be a result of mortgage lender misconduct, rather than the borrower’s default of the terms of the loan.
Homeowners may also include any counter claims in their answer to the lawsuit. These are like little lawsuits made back against the lender with the borrowers requesting relief from the courts for the damages they have suffered at the hands of the bank. It is important to note that any counter claims must be made in the answer itself, rather than be filed later on after the lawsuit has ended. If a lawsuit is brought later on that could have been included as counter claims in the original foreclosure, it will likely be dismissed as violating the rules of civil procedure.
Simply knowing how the courts work and how to file an answer to a complaint will not stop foreclosure entirely, and certainly not every family that has defended its home in court has had an easy time of winning its case. But this tactic, if nothing else, can delay the foreclosure for a long period of time, giving borrowers more opportunities to work out a long term solution or force the bank to negotiate. Filing an answer to the complaint will not guarantee victory, but doing it correctly can put the lender on notice that the homeowners are not willing to go down without a fight and a reasonable solution.