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A Guide to Contesting a Judicial Foreclosure


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TERMINOLOGY

When contesting a judicial foreclosure, you are best served if you are well versed in the role you will play but also if you have a working knowledge of the responsibilities assigned to the lender and the courts.  

Foreclosures are mainly broken into two categories, judicial and non-judicial. While the end result tends to be the same--an auction of the home--the judicial foreclosure involves the court, but the other does not. In addition, a judicial foreclosure will take longer to complete, as it must be processed through the court system for the jurisdiction where the house is located. As the process unfolds, it is the responsibility of the bank or lender to petition the court to rectify the status of non-payment. This court action is known as lis pendens, which translates literally to "litigation is pending."

Contesting

If you live in a state with judicial foreclosure, the lender, the person filing the suit, must provide you with a notice of default that includes the current amount owed. This is the amount that will need to be paid by you, the homeowner, to reinstate the mortgage. The good news is that in a judicial foreclosure state you may contest the foreclosure request upon its delivery. It is important to understand that in order for the bank to acquire a foreclosure order from a judge, the lender must show evidence that the amount to be paid in the notice of default is accurate. The lender must also file all paperwork required to prove all aspects of the case. If the lender is unable to prove accuracy or if you state, either in person or in writing, that the amount is not accurate, perhaps because the lender failed to credit a payment, the court may need to dismiss the complaint. At that point, the bank would need to begin the process once again. If you are motivated to contest the foreclosure because you want to keep your home indefinitely, then hiring an attorney to explain not only the stated laws but also the specific documents that are necessary for your jurisdiction is the best course of action. However, if you are simply buying time until you figure out your next step, this process will probably serve your purpose without the added expense of an attorney.

Redemption Period

Redemption periods have been written into the state codes for a great number of jurisdictions that provide judicial foreclosures. Such a period can be anywhere from six months to a year in length and provides you with additional time to gather the necessary funds to ensure continued ownership of your home. In fact, even after negotiations with the bank have failed or,  further still, the house has been sold at auction, the redemption period provides one final opportunity to get the house back. Even in the eleventh hour of the redemption period, if you are able to secure the funds, you will legally be eligible to regain ownership of the home--and at auction price. If an investor has fixed up the place or made repairs of her own during the redemption period, it is her loss and your benefit with no charge to you.