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You May Only Have Twenty Days

A foreclosure case begins with the filing of a lis pendens and a complaint for foreclosure.  Lis Pendens is Latin for “a pending lawsuit” and refers to the period of time between when a lawsuit is filed and the case is actually heard by the Court.  A notice of lis pendens is recorded in the public record to give the public notice that a lawsuit affecting a  property’s title has been filed in court of competent jurisdiction.  The complaint is the lawsuit itself.  A foreclosure complaint is a series of allegations that if proven might entitle the lender to obtain judicial sale of the property.

After the foreclosure complaint is filed in must be served upon the Defendant homeowner and any other named defendants.  Generally the lender will name any known or unknown tenants, as well as any other entity with a lien or interest in the property.  Additional defendants may include the holder of a second mortgage, home owners or condominium association (HOA), any bank issuing a home equity line of credit (HELOC), contractors with liens against the property, and even local or county government to whom taxes or fines are owned.

Service of Process is the act of hand delivery of a copy of the complaint by a process server or sheriff to the Defendant.  After the process server or sheriff serves the complaint upon the Defendant the process server files a notice of service of process with the Court.  Once the homeowner or other defendant is served, they have twenty days to file an answer or a motion to dismiss.  If the Defendant/homeowner does not respond to the complaint within twenty days after being served, the Plaintiff/lender can move for a default.  A default is the legal equivalent of losing a sporting event by forfeit.  A default does not occur automatically merely because the homeowner fails to file an answer, rather it only occurs after the Plaintiff moves for default.  As such if the Defendant fails to file an answer within twenty days but files an answer before an order of default is issued then a Defendant will be able to avoid default.  Just because it has been twenty days since you were served does not mean that a default has been entered against you.  You may still have time to save your home.  Call us now (or e-mail us for after hours call back) and we will check the Clerk of Courts website to find out if a default has been entered against you.  If your answer is overdue but you have not been defaulted our firm will take immediate action on your behalf usually within twenty-four hours of the firm being hired.

Most of the cases that the lenders win are won by default.  By the simple act of filing an answer a default can be avoided.  In cases where the Plaintiff does not obtain a default there are only two ways for the bank to prevail:  summary judgment and trial. 

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