When you have failed to pay your mortgage for multiple months, the mortgage-holder or its agent may initiate foreclosure proceedings to take possession of your home. While each state has specific procedures, most foreclosure hearings are conducted in a predictable way. Understanding the routine can do more than assuage your fear; it can help you catch errors in procedure or fact that enable you to fight the foreclosure.
Pre-Hearing
After the bank has made legally required efforts to get the homeowner to pay, it can file a Notice of Intent to Foreclose with the courts. The Intent to Foreclose is published in local newspapers. If there is still no resolution, the bank will file papers to foreclose. The homeowner will receive written notice and have a specified length of time to answer. If the homeowner answers, the court will schedule a hearing date at which both the forecloser and homeowner must appear. It is in the homeowner's best interests to answer and attend.
The Plaintiff - Your Mortgage Company
In front of the judge, the mortgage company will present documentation demonstrating that the mortgage was not paid and that all legally required steps to obtain payment have been followed. If the defendant does not show up in court, the judge will issue a summary judgment, allowing the mortgage company to expedite the foreclosure without the homeowner having a say in the matter. In other words, the judge will treat the case as if the homeowner never answered the original court papers. At this point, foreclosure and sale of the home can happen within weeks.
The Defendant - The Homeowner
When the homeowner has the opportunity to speak, she has a variety of options. She can ask for a minimum of 90 days to arrange payment of her mortgage; in most cases, she must work out a way to pay the full past-due amount, including fees and additional interest. She may also challenge the plaintiff's case if there is proof that the mortgage has been paid, or that the facts are different from those presented. In any case, the defendant will almost always get more time to resolve the problem.
Outcomes
If the defendant does not show up in court or does not respond, the mortgage company will obtain a summary judgment, at which point it can foreclose and auction off the house in as little as 30 days. A defendant who does appear in court has a variety of options, from requesting more time to arranging a Chapter 13 bankruptcy. In nearly every case, showing up for a hearing will at least get the defendant more time before any action is taken.
- U.S. Department of Housing and Urban Development: Are You at Risk of Foreclosure and Losing Your Home?
- Debt Workout: Foreclosure and Eviction - Debtor Foreclosure FAQ
- Active Rain: The Florida Foreclosure Process
- Bankruptcy Form Processing: What Happens in a Foreclosure?
- U.S. Department of Housing and Urban Development: Avoiding Foreclosure
- United States Foreclosure Law: Home