foreclosure complaint names multiple defendants.....former husband and myself, unknown spouses and any and all unknown parties claiming by, through, under, and against the herein named individual defendant(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as spouses, heirs, devisees, grantees, or other claimants; bank, homeowners association, tenants the names being fictitious to account for parties in possession Defendant(s)
It is not necessarily the case that everyone has to file an answer in the case. All parties who could potentially have an interest in the property will be named in a foreclosure action. You should see an attorney to see how this will effect you and whether or not a response is warranted b
If a party is named as a defendant and served and fails to respond, it is likely to be defaulted, which then precludes it from raising a defense. Furthermore, if a party is named as a defendant and served and fails to respond, the court will conclude that that party has no defensive case put forward and will proceed accordingly.
With that said, the foreclosure mills include all that improper "unknown party", and you can't tell until you see the returns of service whether they claim to have served your teenage kid, or spouse,. or babysitter, or whoever else may have been there when the process server showed up. Accordingly, this is an issue that needs to be properly evaluated in context in a proper defense. The context depends on all the details. The fact that you are asking this question likely means you intend to defend this case by yourself, which is a big mistake. It is entirely possible that there are good issues that may provide a serious defense, but you need an attorney who really knows the ropes to articulate them properly. you should consult an experienced foreclosure defense attorney to obtain specific advice regarding the defense potential of your case. Depending on all the details, it may very well be possible to put on a
viable defense to foreclosure perhaps relating to issues you are not even aware of. However, while people are allowed to represent themselves in court, it is a huge mistake to try. In order to do this effectively, you should obtain the services of knowledgable foreclosure litigation counsel. This is not something that even most attorneys know how to do. We have quite a few clients who are themselves attorneys, yet have come to us for help because they understand this, and realize that in order to have a chance against the "big guys" they need really qualified people to help them.
Doing this properly is very difficult and detailed work. It is a very specialized area of law which most attorneys do not fully understand, and there are few if any consumers who would be able to put together any sort of viable defense. I am puzzled at why any non‐attorney would think he or she could successfully handle a litigated matter without an attorney highly qualified in the area of law in question. This is comparable to doing delicate surgery yourself or a loved one if you are not a surgeon.
The law is very complex, litigation rules and procedures are very complex, the strategic considerations are very complex, and the area of foreclosure litigation is something even most attorneys know nothing about as explained above, and is constantly changing. Every case is different, what might be possible in this situation would depend on the exact details and legal issues in your case. Only a really qualified foreclosure defense will know how to even figure out what those are. An attorney who really understands how this works needs to hear all the details. Some people hold off contacting an attorney because they think the cannot afford to be represented, but in truth, if you are seriously interested in trying to resolve the problem without losing your home and / or without facing a huge deficiency judgment, you can't afford not to. We try very hard to make financial arrangements with potential clients that put serious, aggressive, state of the art defense techniques within reach of people who have been beat up and abused by the financial services industry.
If you care how this turns out, I urge you to find an experienced attorney who is knowledgable about foreclosure defense to represent you. I see pro se people in court all the time. It is sad and frustrating to me ‐ they are lost, cannot possibly know enough to be effective, and of course, they get walked all over, even when their issues are "winnable".
Nobody has to file an answer. Having said that the next question is why are you asking this as I suspect you are getting to something else. But as said in other answer this is a complicated area of the law and one representing himself has a fool for a client.
Both attorneys raise valid points.
Do you "have to" file an Answer? That depends on your goal. If you are already out of the house, you are not on the promissory note and therefore have no exposure to a deficiency judgment, and want to put the past behind you as quickly as possible, then you might decide to let a default be entered against you. A default means you admit to the well plead allegations of the Complaint--you are not contesting the allegations and so the Plaintiff does not have to prove up the facts alleged.
Now, lets change the scenario. All of the factors above remain the same, but this time, your ex is living in the property with a minor child, a junior in high school, and you want your kid to be able to finish out the school year at the same high school and not have to transfer to another school if he/she would move outside the school district. Now, you may have an interest in the foreclosure not going through until after next June.
An Answer to a Complaint does not have to be notarized, and you are not committing perjury if you deny an allegation that you know is true. The denial of an allegation means that you are putting an allegation into issue and insisting that the Plaintiff meet is burden of proof. The Plaintiff may not be able to do so. So, a denial does not put you in jeopardy of violating the law. You have the right to make the Plaintiff work to get the foreclosure through.
Now, lets add another factor: HOA fees. If you are not on the title/deed, you have no concern, but if you are an owner, you have liability to the HOA until the foreclosure goes through. You might prefer that the foreclosure go through as quickly as possible so that your liability to the HOA ends sooner than later.
Likewise, liability insurance on the property. As long as you are the owner, you have liability to someone who gets hurt on the premises--another reason that if you are out of the house you might want the foreclosure to go through as quickly as possible. But, if you are living in the premises, it is like having free rent. Even paying the HOA assessments, if any, and/or insurance premiums, will probably be less money than needed to rent elsewhere.
If you do not file a response and go into default, you will only be doing what a lot of people do and that is: not fighting the case. This is a civil case. Unlike a criminal case, or a traffic court hearing, where if you do not go you can get in trouble, in a civil case, you are not required to attend hearings or other Court functions, unless you are under a subpoena or a Court order directing you to do so. The judges will not think ill of you. You do not have to defend in a civil law suit if you do not want to, and the judges know it.
So, to answer the first part of the question, whether you "have to", the answer is no. You might want to but you do not have to.
The unstated question, which Ms. Golant addressed, is whether you should retain an attorney to represent you in the foreclosure action. She is correct, a foreclosure case is potentially very, very complex. Depending upon your priorities, an attorney may be necessary to effectively present your position.
Look: I know how to change the oil on my car. I have done that a few times in my lifetime. It might be fun once or twice, but the bottom line is that a commercial oil change business can do it quicker and less expensively. And, if something goes wrong, I get to point the finger at the experts. You wouldn't want to perform surgery on yourself, would you? Even if you were a surgeon, you would want to have someone else do it, yes?
Good luck to you.
