This concludes the series of guest posts by foreclosure defense attorney N. Ana Garner. The earlier posts in the series are here, here, and here.
HOW TO PREVENT A DEFAULT JUDGMENT AGAINST YOU FOR FORECLOSURE
By N. Ana Garner, Esq.
4. At the end of the answer, you can assert defenses. An important defense is standing (the bank lacks the legal right to foreclose on your home, because it isn’t the right party); violations of TILA and HAMP laws (especially if you applied for and never received any loan modification); unjust enrichment; unclean hands; predatory lending practices; failure to state a claim for which relief can be granted. Number each of these separately under the centered words
“AFFIRMATIVE DEFENSES”.
5. At the end of your affirmative defenses, you can put a statement of the relief you want the court to grant you. A short statement like this will do the trick: “Defendant requests that this Court dismiss the complaint, nullify the mortgage and note, and quiet title in the name of Defendant, and whatever other relief the Court deems just and proper.”
6. Sign the Answer, putting your current mailing address and telephone number, and email if you use that.
7. You’ll also need a statement of how you served the bank’s attorney at the very end: ” I certify that I (mailed/emailed/faxed) a copy of this pleading to Attorney X, at this (address/fax number) on __ day of ___ month, 2012.”
8. Send one copy to the court by mail and one copy to the attorney who signed the complaint. To serve the attorney, you may do this by fax, mail, or email attachment to the attorney. Unrepresented people with a civil case can file the answer by presenting it at the court clerk’s window or mailing it to the court clerk. Be sure and mail an original and one copy of the Answer, plus a self-addressed stamped envelope, to the Court Clerk, with a cover letter asking them to return the endorsed (stamped) copy back to you. This step is necessary to give you proof of when the Answer was filed in court. (Attorneys are required to use the e-filing system, however, “self-help” folks do not file papers this way). Santa Fe District Court even has a self-help line: 505-455-8146.
Following these steps exactly are enough to prevent a default judgment. This will buy you time to prevent a default judgment, and possibly find an attorney to help you. Whatever you do, DON’T IGNORE A FORECLOSURE LAWSUIT!! MAKE SURE YOU FILE AN ANSWER WITHIN 30 DAYS IF YOU DON’T HAVE AN ATTORNEY!
Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas. She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens. Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.
Ms. Garner will return with more guest posts later this year.
