To start a judicial foreclosure, the attorney for the mortgage loan holder (the loan owner), which is either the original lender or the party that the lender later sells the loan to (called an "investor"), prepares three documents: a complaint, a notice of lis pendens, and a summons.
The judicial foreclosure officially begins when the foreclosing party, called the “plaintiff,” files a lawsuit (the complaint) in court. A copy of the complaint is then served to the borrower and any other defendants, along with a summons. And a notice of lis pendens is recorded in the county records.
What Is a Complaint for Foreclosure?
The complaint for foreclosure, which in some states is called a “petition,” sets out the plaintiff’s claims. The complaint describes:
- the loan documents, including the mortgage and promissory note
- the property that the plaintiff is foreclosing
- the default, like that the borrower failed to make the payments or violated the loan contract in some other way
- the total amount the borrower owes, including principal, interest, fees, and costs, and
- the other defendants in the case, including junior lienholders and judgment lienholders, if applicable.
In the complaint, the plaintiff asks the court for a judgment and for permission to sell the home at a foreclosure sale. Depending on state law and the circumstances, the complaint might also ask the court for a deficiency judgment against the borrower if the foreclosure sale doesn’t bring in enough money to fully repay the debt.
What Is a Summons in a Foreclosure Case?
A summons informs the defendants that a complaint for foreclosure has been filed, provides information about the defendants' rights, and gives the defendants a specific amount of time, usually 20 to 30 days, to file a written response (called an “answer”) to the suit.
A process server typically serves the summons, along with the complaint, to the borrower and other defendants. State law sets out who may serve a summons and complaint, and what other types of service are allowed, like by certified mail. Once the process server serves you with the lawsuit paperwork, the clock starts running for when you have to file an answer if you choose to do so.
What Is a Notice of Lis Pendens?
“Lis pendens” is Latin for “suit pending.” When the plaintiff begins a foreclosure lawsuit, it usually records a notice of lis pendens in the county land records. The plaintiff records this document to inform the public, subsequent lienholders, and potential purchasers of the property that a lawsuit is pending involving the property.
The notice of lis pendens is normally a one- or two-page document that includes the legal description of the property and states that the plaintiff has started a foreclosure lawsuit.
Talk to an Attorney
You may prepare an answer to the suit and file it with the court on your own, called “pro se” (meaning, without a lawyer). However, an attorney might be able to raise defenses or flaws in the plaintiff’s complaint that you didn't notice. If you want to fight the foreclosure, consider talking to a foreclosure attorney.
If you want to apply for an alternative to foreclosure, like a modification, short sale or deed in lieu of foreclosure, an attorney or a HUD-approved housing counselor can advise you about different options and help you navigate the process.
If you don’t want to fight the foreclosure and are ready to let your home go, you probably don’t need to respond to the complaint and summons. The court will enter a default judgment (an automatic win) in favor of the plaintiff, which means the foreclosing party gets a judgment of foreclosure and the ability to sell the home at a foreclosure sale. Depending on the laws of your state, the plaintiff might also get a deficiency judgment.
If you find yourself faced with a deficiency judgment, you might be able to wipe it out (discharge it) in bankruptcy and, in the process, get rid of other debt, such as credit card balances, unpaid medical and utility bills, and personal loans. To find out if bankruptcy will help, consider meeting with a local bankruptcy attorney.