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AR-150629497.jpg&maxh=400&maxw=667Law You Can Use: Understanding the foreclosure litigation process


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By Ohio State Bar Association


Question: I’m behind on my mortgage and don’t think I can catch up. What happens now?

Answer: “Foreclosure” describes the legal process the mortgage lender uses to gain possession of your property, much as a finance company might repossess your car. In Ohio, unlike a “repo man,” the lender can’t just take back your home. To begin the foreclosure process, the lender must file a lawsuit against you and properly notify (“serve”) you with a complaint.

What happens next?

Once you have been served with a complaint, you have 28 days to file an “answer.” Clerk of Courts offices will advise you if an extension of the 28-day answer period is available, or your county court’s rules may be available online. Also, you can call the lender’s attorney and ask for an extension. Your answer does not have to be formal. If you do not have an attorney, copy the format used in the complaint and honestly respond to each paragraph (by admitting it, denying it or stating that you do not have enough information to admit or deny). Follow the instructions on the summons for filing and serving your answer. If you have a legitimate claim against the lender, contact an attorney to see if you can file a counterclaim. An attorney may also suggest “affirmative defenses” to include in your answer.

What if I have no defenses to the foreclosure complaint?

Did the lender properly send you a notice of acceleration as outlined in your note and mortgage? If your mortgage is FHA or VA insured, did the lender follow federal law before filing the foreclosure case? If you are not sure, then answer the paragraph where the lender claims it performed all “conditions precedent” by stating that you do not have enough information to admit or deny. Remember, the mortgage lender still must prove its case against you. After filing and serving your answer, you can ask the lender’s attorney, in writing, to give you copies of all documents to be used to prove their case, the names of all witnesses who will testify against you, and any other evidence they may have. Also, the court usually will set a case management conference (pretrial), and you can attend without an attorney. Dates and deadlines are set at the pretrial, and you may ask for the maximum time possible. Also, you may ask the court to schedule a “mediation” to discuss possible alternatives to a sheriff’s sale of your home. The court may advise you of other available resources.

What if I can’t afford an attorney?

If you cannot afford an attorney or get help from your local legal aid, you should still take action. For example, you can ask the mortgage lender’s attorney for a “cash for keys” agreement, whereby you give the lender a “deed in lieu” or a “consent judgment entry” and negotiate a date certain to move out and leave the home “broom clean” in exchange for money to help you move. Other options may include loan modification or filing for bankruptcy to delay the foreclosure and allow you to reorganize your finances. You can also monitor your foreclosure case online and call the court or the lender’s attorney with questions. If possible, do not leave your property vacant. The mortgage lender, your neighbors and family will benefit if you keep your home clean and secure while preparing to move.

How long does the process take?

If you do not file an answer, the lender can get a default judgment against you within a few months of filing suit. Then, the process moves toward a sheriff’s sale, which may take several months. The timeline may vary depending on the county, but you likely will have at least six months from the foreclosure filing before having to move. Homeowners in larger counties may be able to stay in the house a year or more. The home is still yours until the sheriff’s sale is confirmed.

You can also try to sell the house while in foreclosure, but the lender does not have to agree to accept anything less than what you owe on your house. If you can sell for a price close to what you owe, the lender might agree to a “short sale.” However, if your home sells for less than what you owe, you may still owe a “deficiency.” In Ohio, a lender has only two years from the date the house sale is confirmed to collect on that deficiency.

This “Law You Can Use” consumer information column was provided by the Ohio State Bar Association. It was prepared by Timothy J. Puin, of counsel for the Cleveland firm of Janik LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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