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After you miss your first mortgage payment, your loan provider will probably send you a Notice of Default. This is the first step before a foreclosure process begins, and this notification will have information about how to bring your account current and loss mitigation options available to you.
Don’t ignore this warning letter and begin seeking help for your situation by speaking with your bank directly or contacting an attorney. Doing so can help you delay the foreclosure timeline and help you find a way to get back on track with your payments. However, if you don’t take advantage of this opportunity or your financial situation doesn’t offer any solutions, you will receive another notice called a “Lis Pendens.” Once you receive it, you only have 20 days to file a response, or you forfeit your right to contest foreclosure proceedings against you.
When a lender decides it’s time to file suit against you in a judicial foreclosure action, they will do so with the county court where you live. If it’s a nonjudicial action, your mortgage provider doesn’t have to go through the court system at all but complete specific steps outlined by the state that has jurisdiction.
A lis pendens is one of three documents that must be prepared to file a judicial foreclosure suit against you. The other two are a complaint and summons, all of which serve very different purposes.
When your bank begins the foreclosure process, it will record a lis pendens with the county land recorder’s office. This serves as a notification to the public that your property has a pending lawsuit against it. It usually consists of just one or two documents that outline the description of your property and that foreclosure proceedings have been started.
Sometimes referred to as a petition, the complaint is paperwork filed with the court that outlines the claims of the bank’s suit against you. Typically it includes the following information:
This complaint will also tell the court that your bank wants relief in the form of a judgment allowing it to foreclose on your home and sell it. This paperwork will often include a demand for a deficiency judgment against you should the sale price not be enough to cover the debt you owe. If granted, you will be ordered to pay the difference.
The purpose of the summons is to let you know that you have the opportunity to answer the suit in writing formally. Usually, you only have 20 days to make your response if you plan to fight the foreclosure and submit a valid defense or raise an issue with the bank’s action.
Often, defendants who fail to file a formal response within 20 days of receiving a lis pendens will lose their right to fight the foreclosure suit. This means the court will likely issue a summary judgment in favor of the plaintiff and guarantees your home will be sold in a foreclosure sale.
There are many reasons to respond to a lis pendens, but the primary reason is that it wasn’t issued correctly in the first place. When a lender files this notification by fraudulent means, this can make them liable for illegal action and result in a slander of title. In addition, when someone, or a business like a lender, publishes a lis pendens on the property record that is untrue, it can cause damage to the owner’s property value.
Should you prove the bank maliciously or intentionally misused a lis pendens against your property, you may be entitled to damages.
To ensure that you choose the best approach to avoid foreclosure, make sure you have aggressive legal representation. Attorney Marc Brown provides high-quality legal services based on his decade representing lenders throughout the South Florida area. His unique insight into how banks pursue foreclosure makes him your premier choice for legal counsel in this area of law. To schedule a no-cost legal consultation regarding foreclosures and deficiency judgments, contact the law offices of Marc Brown today
