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Litigation Strategy
Litigation Strategy
Follow the following litigation steps in defending a foreclosure action in court:
1. Decide what your litigation goals are. What are you trying to accomplish?
A. Rescission of the loan.
B. Mitigating some of the money you will need to pay the lender.
C. Drawing out the process long enough to make other living arrangements.
B. Mitigating some of the money you will need to pay the lender.
C. Drawing out the process long enough to make other living arrangements.
2. Print your state’s “Rules of Civil Procedure,” usually available on your state Supreme Court’s website. (Appendix L to 23 Legal Defenses to Foreclosure includes the Federal Rules of Civil Procedure, as adopted by most states.)
3. File a “Motion for Extension of Time” to buy some additional time before having to file your Answer. (Click here for an example.)
4. Walk through each chapter of 23 Legal Defenses to Foreclosure to determine whether the defense applies in your case. Use the checklists found in most chapters to quickly determine if the defense applies in your situation. Pay special attention to the chapters that are most powerful:
A. Defense #1, #2, and #4: Truth-In-Lending Act.
B. Defense #3: HOEPA.
B. Defense #3: HOEPA.
5. File a “Motion to Dismiss,” if a defense supports it. Use:
A. Defense #9: Real Party in Interest.
B. Defense #12: Failure to Establish Conditions Precedent.
C. Defense #13: Failure to Comply with FHA Pre-Foreclosure Requirements.
D. Defense #14: Mortgage or Note not Attached to Complaint.
E. Defense #15: Insufficiency of Process.
B. Defense #12: Failure to Establish Conditions Precedent.
C. Defense #13: Failure to Comply with FHA Pre-Foreclosure Requirements.
D. Defense #14: Mortgage or Note not Attached to Complaint.
E. Defense #15: Insufficiency of Process.
6. After the “Motion to Dismiss” is ruled on, file an “Answer,” unless case has been dismissed. (See Appendix D and E.)
7. At any time, you may start serving discovery on the lender to get damaging information directly from it, including:
A. Interrogatories. (See Appendix J.)
B. Requests for Admissions. (See Appendix H.)
C. Requests for the Production of Documents. (See Appendix I.)
B. Requests for Admissions. (See Appendix H.)
C. Requests for the Production of Documents. (See Appendix I.)
8. File a Motion for Summary Judgment, or
9. Go to Trial.
10. If necessary, file an appeal.