Working in the Court to Defend a 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.