What should you do when ….
You are served with a
“Notice of Default”
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Foreclosure in Daytona Beach, Florida
We are often approached by sellers who have already been served a “Notice of Default” or “Foreclosure Summons to Appear in Court” and need to know where to turn to get assistance. There are two key terms here that you must absolutely understand. What is a “Notice to Appear” and what is a “Summary Judgment”?
The information provided here is to assist the homeowner in understanding what their rights are and how to move forward when served a Foreclosure Notice. The most important thing to do is to TAKE IMMEDIATE ACTION!
We have extensively researched this subject on your behalf and it is our intent to share this information with you so that you can make an informed decision. Don’t just wait and let the lender take your home. We can help, but you must be proactive in defending your rights. If you have any questions feel free to contact us and we will be happy to assist you.
If the bank or mortgage company has started a foreclosure suit against you, you will be served court papers by the sheriff or a process server.
You will probably receive a summons, a complaint, and an order to show cause.
These papers come with a deadline: You must respond within 20 days.
As soon as you receive court papers, read them. Talk with an attorney to get advice.
Call the CLSMF Legal Advice Helpline to see if you are eligible for free legal assistance. Their brochure is available at the end of this report.
What to Expect and How to Respond
Service of the Summons and Complaint –
The bank (or authorized loan servicer) files a Complaint for Foreclosure with the Court and has served you with a copy of it.
Respond to the Complaint –
As the Summons that accompanies the Complaint explains, you are given 20 days (from the date that you are served) to file a response to the Complaint with the Court and serve (mail) a copy of the response on the attorney for the bank.
File an Answer
- Here you can either “Admit” or “Deny” the allegations made against you. You go through each paragraph of the summons and write an answer to each claim that you disagree with. This forces the lender to deal with you and gives you an opportunity to request mediation. This opens up a huge window and gives you leverage. You can even file a counter claim if you think that the lender has wrongfully foreclosed upon you or violated any other laws such as TILA or RESPA.
File a “Motion to Dismiss”
- When you file a “Motion to Dismiss” it means that you do not believe that the complaint merits an answer and shouldn’t be allowed to move forward. If you believe that the lender has filed a wrongful foreclosure against you, that there are facts that haven’t been entered into the complaint and you have evidence to support your claim you can file a Motion to Dismiss and have the judge review your evidence and make a ruling. For example; if you have already worked out some terms with the lender such as a re-payment plan, a short sale etc.
- By filing a “Motion to Dismiss” there will be a hearing on that motion which could take several months.
File a”Motion for an Extension in Time”
- If you have not yet had the opportunity to speak with an attorney or you are still looking for one. You can request an extension of 30 days to file an “Answer”.
We have provided example forms at the end of this report which you can use to file each of the above responses.
Don’t just ignore the Summons and Complaint!!! –
This is a huge mistake and if you fail to respond the bank wins by default and a judgment will be entered against you.