Anatomy of a Foreclosure Case by a Melbourne Foreclosure Attorney


If you are behind on mortgage payments, or have already been served with a foreclosure complaint and summons, you may be wondering what's next. What happens when the bank files a foreclosure? What is the process the bank has to go through to take my home? How can I fight the bank and keep my home? The Bowin Law Group's Melbourne Florida Foreclosure Attorney has defended hundreds of foreclosures throughout Brevard County, Florida, including Palm Bay, Cocoa, Merritt Island, Rockledge, Indialantic, Indian Harbor Beach, and the entire Space Coast. In this article, I will summarize the basic anatomy of a foreclosure case, to give you an idea of what the process entails and how you can use it to your advantage to obtain a resolution with the bank. After reading this article, you may actually know more about the foreclosure process than most foreclosure attorneys, but it's still best that you hire an attorney anyway.

A foreclosure case is much like any other lawsuit. The Plaintiff, in this case the bank, files a Complaint in the Circuit Court claiming that the homeowner defaulted on his mortgage loan, and that the bank is entitled to foreclose its mortgage lien and sell the property at a foreclosure auction. After the bank files the Complaint, the bank then serves a summons upon the homeowner, which instructs the homeowner to respond within a specified period of time (typically 20 or 30 days). It's at this stage that the a foreclosure defense starts. In fact, the most important paper you will file with the Court is your initial response to the foreclosure Complaint. The first response is called an Answer, in which the homeowner either admits or denies the allegations of the foreclosure Complaint.

Although it all seems formal and complex to a typical homeowner that receives a foreclosure summons, a bare bones Answer is actually quite simple. Most attorneys can do a bare bones answer to a foreclosure Complaint in less than 10 minutes, yet they still charge their clients outrageous fees to file such an Answer. Some attorneys actually advertise that they will defend your foreclosure for as low as $500 - $1,600. That sounds great, until you realize that all they are doing is filing this simple bare bones Answer that takes less than 10 minutes to prepare. Not such a great deal after all (unless you're the attorney, of course). Bowin Law Group rarely files just a bare bones answer to a foreclosure Complaint. Instead, our foreclosure attorney reviews the facts of each case seperately, and consults with the homeowner in person to determine what "defenses" are available to the foreclosure action. These defenses are referred to in the legal world as "Affirmative Defenses." So what is an Affirmative Defense and why is it important?

The best way to describe an Affirmative Defense is that it's a "Yeah, But..." argument. For example, in a foreclosure case, a homeowner may say: "Yes, I took out a loan, and Yes I defaulted on that loan, BUT, this is why I should still win this case." If you can assert this "Yeah, But..." argument, you can significantly increase the bank's burden and expense in the foreclosure case, and possibly even win the case outright.

To understand why asserting an Affirmative Defenses in your Answer is so important, you need to understand how a bank typically wins a foreclosure case. As stated above, the begining to every foreclosure action is the filing of a foreclosure complaint and service of a foreclosure summons. The potential end to every forelosure case is a trial in front of the judge. Everyone who has seen Law & Order, Matlock or Perry Mason has a basic understanding of a trial - both parties in a lawsuit present their witnesses and exhibits and basically tell their side of the story. The only purpose of the trial is for the judge or jury to determine who's facts to believe. Once the facts are determined, the Court can make a ruling on the law. Since the only purpose of a trial is for the trier of fact (in this case the Judge) to determine issues of fact, if no issues of material fact exist, then there is no need for the Court to conduct a trial. This is crucial to understanding a foreclosure defense.

If all a homeowner (or his attorney) does is file a bare bones Answer to the foreclosure complaint, the bare bones Answer does not raise issues of material fact that require trial. The only thing the bank will need to do to obtain a foreclosure judgment is to file an affidavit with the Court that states (i) the homeonwer borrowed money, (ii) the homeowner defaulted on the loan, (iii) the bank has a mortgage, and (iv) the bank's mortgage is superior to anyone else's interest in the home. If there are no "Affirmative Defenses" asserted in the homeowners' Answer, and the bank files its affidavit, the Court is REQUIRED to enter a foreclosure judgment WITHOUT A TRIAL. This kind of judgment is called "Summary Judgment" because it's an early judgment without trial. After Summary Judgment, the Court sets the home for a foreclosure auction, after which the homeowners is removed from the home. With just a barebones Answer on file, the bank can get Summary Judgment in a matter of months. If, however, you assert Affirmative Defenses to the foreclosure, which is more than just a general denial of the allegations in the complaint, then the Court is not allowed to enter Summary Judgment, and the bank is required to go to trial.

For reasons that go beyond the scope of this article, the banks want to avoid going to trial whenever possible. Indeed, more than 95% of foreclosure cases are determined by summary judgment, meaning the bank does not have to pay for the costs of a full blown trial. If, however, you are one of the few homeowners that retained an attorney to assert Affirmative Defenses to your foreclosure action, the bank knows from the outset that it will not get a Summary Judgment, but must instead go to trial to win the foreclosure suit.

Although it varies from case to case, a trial can cost the banks tens of thousands of dollars more than a Summary Judgment. So, imagine you were a bank representative that had a stack of 1,000 foreclosure cases on your desk and only one of those cases asserted Affirmative Defenses to the foreclosure action (again, as opposed to a bare bones denial of default). You had one case that presented a defense to the foreclosure action and was going to cost you tens of thousands of dollars more than the other 999 cases because it was going to require trial instead of an easy Summary Judgment. Now imagine you have limited resources to review millions of requests for mortgage modification. Which cases would you continue to foreclose on and which case would you actually allocate resources to to evaluate whether a mortgage modification was possible? The answer is obvious. It's what we call a "no-brainer." You would push the case that asserted and Affirmative Defense aside and review it for modification, while proceeding with the foreclosure on the others. Is it any surprise that the bank is going to take the option that costs it the least amount of money? Wouldn't you?

Although this is an oversimplified summary of the process, hopefully it provides some insight into the anatomy of a foreclosure case and the financial incentives that may lead to a succesful resolution of your foreclosure case.

For more detailed information on the foreclosure process, and what we can do to defend your foreclosure case and modify your mortgage, contact our Foreclosure Defense Attorney for a free consultation. We will determine what Affirmative Defenses you have to your foreclosure case, and we will work toward resolving your foreclosure on the best possible terms for your family. Or, complete our free online evaluation and someone from our office will get in touch with you.

Bowin Law Group - Brevard's Hometown Law Group