Date: February 26, 2020Author: Joshua Denbeaux
I have a video here providing more information, but this page is devoted to responding to the most common mistakes made in foreclosure litigation here in New Jersey.
It is best to hire an attorney to represent you in a foreclosure case, but if you want to handle this on your own, this is how you go about answering the Complaint.
You MUST File an Answer to the Foreclosure Complaint.
It is basic to New Jersey – and American – laws that a Plaintiff, even a bank in a foreclosure case, must prove its case. If you do not Answer the Complaint, you are allowing the bank to proceed to take your house without proving most of its case …
… and sometimes they cannot do it. Which you do not Discover if you do not Answer the Complaint.
Even more importantly, when you Answer you take action to defend yourself and you buy yourself time. Time to get back on your feet. Time to seek out advice on how to best proceed to protect your family. Time to strategize, to plan and to prepare … to win.
How do I file an Answer to My Foreclosure Complaint?
Click this url: https://njcourts.gov/forms/11380_foreclosure_ans_prose.pdf?c=3kb
Foreclosures are run by the Foreclosure Unit in the Clerk’s office. The above url bypasses their entire page and gets you right into the instructions and forms for filing the Answer.
There is a filing fee of $175.
You must send a copy to the Clerk and to the Bank’s attorney, and both should be sent by Certified Mail, Return Receipt Requested. Each mailing will cost you $7.25 but it will assure that you have proof 1) that you mailed it, and 2) that it was delivered.
I cannot begin to tell you the number of times that mortgage servicers and their attorneys claim that they did not receive a document that was in fact delivered to them.
All told, you will be set back just under $200, but you will have Answered the foreclosure complaint.
Why is Filing an Answer to the Foreclosure Complaint so Important?
You are in litigation. Nobody, in any other kind of suit, would EVER even think of not Answer the Complaint.
You have the right to make the Plaintiff – in this case, the mortgage servicer or the bank – prove its case. They cannot always prove their case, even in situations where my clients believe that the bank is essentially correct.
On that Point, for my case the Bank is Right. Should I Still File a Foreclosure Complaint?
Yes. A thousand times yes.
You have the right to compel the bank to prove its case. There are two potential benefits to this, more than just two, but two of the benefits are:
These are the two benefits when there are no obvious defenses to the foreclosure suit.
I Have been Told that if I Answer the Complaint it Makes it More Difficult to Modify the Loan Later. Is this True?
Absolutely NOT. COMPLETELY FALSE.
In fact, and especially when there is a contested issue, Answering the Complaint makes it EASIER to resolve a disputed foreclosure.
There, quite literally, is NO DOWNSIDE to filing the Answer. None.
And you are completely foolish if you do not Answer the Complaint. I have consulted with thousands of people threatened with foreclosure over the years. I cannot honestly think of a single instance in which filing an Answer to the foreclosure complaint was a bad idea.
What Happens Next in the Foreclosure Litigation?
What happens next is the bank does not enter an Order of Default against you for not Answering. That, right there, puts you in a better position than over 80% of foreclosure defendants.
The next step is the Court will schedule a Case Management Conference. Since you are representing yourself, you will have to appear in Court. That is a conference at which time the Bank’s attorney and you stand before the Judge who will tell everyone what the time deadlines are for asking for discovery (I have a video and a blog post about that) and when the bank is allowed to file its Motion for Summary Judgment.
What if the Bank did something Wrong to Me? Should I Still Represent Myself?
Lawsuits against banks and mortgage servicers for fraud, servicer abuse, debt collection violations, credit reporting errors … these all REQUIRE expert attention.
If you think you have a substantive claim against your lender or mortgage servicer, CONSULT WITH AS MANY ATTORNEYS AS IS NECESSARY TO FIND THE RIGHT LAWYER FOR YOUR CASE.
I have a video and a blog post about how to identify the right consumer rights lawyer for you.
What are the Most Common Types of Mortgage Servicing Fraud and Abuse?
The following list is incomplete. As the New Jersey Supreme Court said in a decision in the 1990’s,
“[t]he fertility of [human] invention in devising new schemes of fraud is so great . . . the [law] could not possibly enumerate all, or even most, of the areas and practices that it covers without severely retarding its broad remedial powers to root out fraud in its myriad, nefarious manifestations.”
Which is a fancy way of saying that people have infinitely creative ways to defraud one another and it is impossible to list all of the ways that mortgage servicers and banks deceive and defraud consumers. That said, there is a simple rule to follow:
“If you think you have been defrauded by a bank, you probably have been.”
If you think you’ve been defrauded, talk to a consumer rights attorney, but to make things a little easier, these following are some of the more common types of frauds and servicing abuses I come across on a more or less regular basis:
But as I said, and as the New Jersey Supreme Court has said, there is no limit to the manners in which humans eagerly defraud and cheat one another. If you think that you’ve been cheated by a bank, you probably have …
… and then you need to find the right lawyer for you.