The prospect of losing your home to foreclosure can be devastating. It doesn’t matter whether you’ve owned the home for only a short time, or whether it’s been your home for decades. It doesn’t matter whether you’ve just gotten acclimated to the neighborhood, enrolling your children in the local schools and making friends with new neighbors, or whether you’ve raised your family in that home and still savor the memories of those who’ve left the nest and those who’ve passed.
Why is this happening? Is there anything we can do? The one thing you shouldn’t do is ignore any foreclosure papers you may receive. The first thing you should do is contact a foreclosure defense lawyer.
At Slater & Zurz LLP, our experienced foreclosure defense attorneys can help you in your efforts to save your home. We’ve been serving the legal needs of our Ohio clients for over 40 years, and have developed a long track record of success. The best way to save your home, to delay the foreclosure process, or at least to recover any equity you have in it, depends on a number of circumstances:
- The terms of your mortgage;
- The grounds for the foreclosure;
- The process used by the bank or mortgage lender;
- The amount you’re willing and able to pay to catch up on missed payments; and/or
- Technical defenses available under Ohio and federal law, regardless of whether you’re behind on your mortgage payments.
Call or email our team of professionals to schedule a free consultation, and let us help you decide the best way to handle your foreclosure. We’ll review your court papers and your mortgage, answer your questions, listen to your story, identify your immediate needs, and recommend the best way to address the foreclosure and achieve your goals.
If you don’t act after receiving a foreclosure complaint, you can lose your home without any opportunity to present your case.
(1) Initiation of a foreclosure case
The foreclosure process is designed to expedite the sale of your home on behalf of the lender. After you’ve missed three or more mortgage payments, your lender may file a foreclosure complaint in the common pleas court where your property is situated. Once you’ve received a copy of the complaint, you have 28 days to respond.
Don’t “pretend” that you didn’t receive the papers. If you have reason to anticipate a foreclosure action, your best strategy is to be proactive: if you haven’t already contacted a foreclosure defense attorney based on your lender’s threats to foreclose, you should reach out to a foreclosure defense attorney for advice as soon as you receive a written complaint or other notice from a court.
(2) Your duty to respond
Within 28 days after receiving the complaint, you must respond in writing. If you don’t, your lender can request a “default judgment”—judgment against you authorizing the lender to proceed with a sheriff’s sale of your home. A default judgment severely limits your ability to challenge the case in court, accepting all claims in the complaint as true. You can ask the court to accept a delayed answer or overturn a default judgment, but in either case, the court is free to deny your request.
A foreclosure defense attorney can respond to the complaint in your behalf:
- A written answer. Your attorney can file a written answer. The answer may include substantive defenses to the lender’s claims, i.e., that you aren’t behind on your payments or
that the lender doesn’t own your mortgage and has no right to sue you. The answer may also include “affirmative defenses” suggesting reasons for the court to deny the foreclosure even if everything the lender has stated is true.
- Some affirmative defenses can be procedural: that the lender did not attach necessary papers to the complaint, or that the lender sent the complaint to the wrong person or address.
- Other affirmative defenses can involve prohibited conduct by the lender, such as failing to disclose the full cost of the loan (the interest rate and/or other charges) when the mortgage was issued, or fraud.
- A motion seeking court action. Your attorney can raise certain defenses in a written motion, drawing the court’s attention to those defenses and asking for a ruling. This may give you more time to resolve any deficiency in payments, and possibly settle with the lender.
It’s essential that you seek the advice of an experienced foreclosure defense attorney as soon as possible. Your attorney may need to get copies of papers you don’t have, investigate your lender’s conduct in issuing and servicing your mortgage, determine whether the foreclosure complaint is legally sufficient, and establish whether the terms of your mortgage comply with the law. An attorney with experience defending foreclosures is in the best position to know whether any particular defense should be brought to the court’s immediate attention in a motion or simply identified in an answer.
At Slater & Zurz, we’re dedicated to vindicating the rights of homeowners who may be unfairly stripped of their interests in their homes by lenders whose only concern is their own profitability. We won’t leave any stone unturned in investigating a lender’s claims or the homeowner’s defenses. We’ve successfully represented clients in state common pleas and appellate courts throughout Ohio, the Ohio Supreme Court, numerous federal district courts, and federal courts of appeals. We’re ready to take on your lender in any court located in this state.
Courts render most foreclosure judgments based on the papers submitted by both sides. Foreclosure cases rarely go to trial. Because most homeowners don’t have any opportunity to explain their position in person to a judge or jury, it is essential that you be represented by a foreclosure attorney who knows which issues matter, and how to effectively present those issues to the court. Simply writing a letter to the judge won’t preserve your right to keep your home.
Who owns the mortgage, whether you signed the note, whether you’ve missed payments, and whether the mortgage documents comply with the law can usually be proved by copies of the note, mortgage, the lender’s payment records (or your cancelled checks showing no missed payments), and proof that ownership of the mortgage was transferred to the lender suing you. Any legal issues are typically argued in writing by the attorneys for each side.
Foreclosure and COVID-19: The CARES Act may protect you!
The CARES Act (Coronavirus Aid, Relief, and Economic Security Act) provides foreclosure relief for federally-backed loans—loans for properties purchased, owned, insured, or guaranteed by Fannie Mae or Freddie Mac; or owned, insured, or guaranteed by FHA, VA, or USDA. A foreclosure defense lawyer can determine whether your loan is a federally-backed loan. About two-thirds of residential mortgages are federally backed, and therefore are covered by the CARES Act.
- Foreclosure protection for anyone with a federally-backed loan. Whether or not you’ve been affected by COVID-19, the CARES Act should protect you against the commencement of foreclosure proceedings, any court motion for a foreclosure judgment, a court order for a foreclosure sale, or an actual foreclosure sale. Currently, these protections are set to expire
on June 30, 2020.
- Forbearance for borrowers with federally-backed loans affected by COVID-19. If you have been affected by COVID-19, you can request and obtain forbearance from mortgage payments for up to 180 days, and can then obtain forbearance for an additional 180 days. The covered period is expected to last until the end of the COVID-19 emergency or December 31, 2020, whichever is earlier. During the forbearance period, you can’t be charged any fees, penalties, or interest beyond what would otherwise apply if you made all payments in full and on time.
You have options even if you are behind on your payments and the lender hasn’t engaged in any unlawful tactics.
An accomplished foreclosure defense lawyer can often resolve the case quickly if the lender has undeniably violated the law, e.g., by issuing a mortgage that omits required information. However, even if you’re behind in payments and the lender has complied with all its legal obligations, you have a number of options, whether or not your case is in court.
- Refinance the loan. Depending on how long you’ve owned the home, how much equity you have (the fair market value of the home less the amount still owed on the mortgage), you may be able to refinance your mortgage, possibly at a lower interest rate and/or with lower monthly payments.
- Obtain forbearance from your current lender, either under the CARES Act or through negotiation, giving you time to get caught up.
- Negotiate with your lender. If your case is not yet in court, you may be able to avoid court altogether if you and the lender can agree on a plan that will bring your payments current within a reasonable time. If your case is in court, mediation may be available through the court. A foreclosure lawyer will know if this is an option in your case, and if so, he or she can arrange it.
- File for bankruptcy. If you file a chapter 13 bankruptcy, that filing will temporarily halt any ongoing foreclosure proceedings, until the bankruptcy is resolved. You will have to provide the bankruptcy court with detailed financial information concerning all your assets, debts, income, and expenses, and propose a plan to catch up on your mortgage, typically over a three- to five-year period. All your creditors must be notified. The bankruptcy court will oversee the process and resolve any disputes. If you make all payments provided for under
the plan, your mortgage will be in good standing and most of your unsecured debts (debts that are not backed up by collateral, such as a house or car, that can be sold if you fail to make payments) will be discharged, or cancelled.
A chapter 7 bankruptcy will stop the foreclosure process for a brief period, but will not save the home. All your debts will be discharged, but property securing those debts, including your home and vehicles, must be surrendered unless you agree to continue making payments.
- Deed in lieu of foreclosure. If you don’t want to keep the home, a deed in lieu of foreclosure allows you to walk away from the property without a foreclosure on your credit record.
- Short sale. If you don’t want to keep the home, your lender may agree to accept less than the amount you owe from a new buyer in order to sell the home more quickly.
The cost of your foreclosure defense will depend on multiple factors.
- Filing fees. Filing fees vary from one court to another, and include the initial cost to initiate a proceeding, file an answer and/or counterclaim, and costs to file additional documents in your case. Filing fees are not a significant cost in defending a foreclosure.
- The issues in dispute. The cost of a foreclosure defense will depend on the complexity of the case and the issues that must be litigated.
- Attorneys’ fees. Foreclosure defense attorneys may charge either an hourly fee or a flat fee for their services. Relatively simple cases are often handled for a flat fee. Hourly fees are more common when a case is more complex, involving the gathering and analysis of substantial evidence from the lender and/or third parties, or the development of novel legal theories
tailored to a particular case. Typically, a foreclosure defense attorney who charges an hourly fee will ask for a retainer—an up-front payment that will be held in trust, from which the attorney will withdraw fees as they are earned. After the representation is concluded, any unearned fees are returned to the client; if the retainer is depleted before the case is over, the client may be asked to advance additional funds to cover the attorney’s services.
At Slater & Zurz, we will discuss the fees for our services during a free consultation, based on the type of foreclosure defense that is necessary to accomplish your objectives, the issues in your case, and our assessment of what will be involved. Throughout your case, we will strive to continuously earn and maintain your trust by treating you with the respect you deserve, by keeping you informed about all developments, and by fairly and meticulously accounting for all fees we charge.
A debt relief agency may charge less than a foreclosure attorney, but watch out!
Even if your foreclosure case is not yet in court, your lender is represented by skilled legal counsel every step of the way. Most foreclosures begin with pre-litigation processes between the homeowner and the lender that offer an opportunity to resolve the foreclosure without going to court. A foreclosure attorney who is aware of all available options for saving your home is in the best position to assist you in the pre-litigation phase of your foreclosure case. Let our foreclosure defense attorneys at Slater & Zurz help level the playing field and guide you through the foreclosure process from start to finish. We’re on your side!
Debt relief agencies can negotiate with creditors, and can help set up payment plans to help people who are behind get on their feet financially. However, debt relief agencies can’t represent you in court. Once a foreclosure has been filed, only a foreclosure defense attorney can see that your interests are fully protected. Only a lawyer licensed to practice in Ohio can file an answer, file a motion, or appear in court on your behalf. Only a lawyer can advise you concerning how to handle your foreclosure case.
Lenders and their lawyers know this, but may continue negotiating with a debt relief agency even after a foreclosure has been filed. If you’re relying on a debt relief agency and fail to properly respond to a foreclosure complaint within the required time period, the lender can request—and usually, obtain—a default judgment against you, paving the way for your home to be sold at a sheriff’s sale.
A home is a major investment, financially and emotionally. Trust an experienced, full-service law firm to assist you in your efforts to protect that investment.
At Slater & Zurz, we understand what your home means to you, whether you’re determined to save it or resigned to let it go. We’re aware of all the options available to you, whether you’ll do anything you can to keep your home or would rather surrender it in order to protect your credit. Call or email our foreclosure defense team to schedule a free consultation. One of our foreclosure attorneys will review your court papers, personal finances, mortgage and related documents, and will discuss your short-term needs and long-term goals. Based on that information, we’ll craft a plan designed especially for you, to address the foreclosure and achieve your objectives. We’ll be there for you when you need us!