The Foreclosure Court Process
The Plaintiff is the person who starts a foreclosure case against the person(s) the Plaintiff believes is responsible for making the mortgage payments. The person being sued is called the Defendant. In a foreclosure case, the Defendant is the homeowner. The Plaintiff will also name as Defendants any other persons whom the Plaintiff believes may have a legal right to the house, such as other people or creditors who obtained a lien against the house.
When either the Plaintiff or the Defendant gives paperwork to the court clerk, it is called “filing” the paperwork with the court. The foreclosure court case starts with the Plaintiff (usually the lender in a foreclosure case) filing paperwork called a Complaint in Foreclosure. In the Complaint, the Plaintiff asks the court for help in making the homeowners pay their debt or give up ownership of their property.
We all have a right to know if someone has filed a court case against us so that we can tell the judge our side of the case. As a result, when the Plaintiff files a Complaint in Foreclosure, the Plaintiff must “serve” the Defendants with a copy of the Complaint. “Serving” the Complaint means that the Complaint must be given to you (the Defendant) along with a Summons. The Summons and Complaint are usually sent to you via certified mail, or hand-delivered. A Summons is the paper created by the court telling you:
- That you are being sued;
- Which court has the power to hear and decide the case;
- That you must file paperwork in response to the Complaint within 30 days of the date you received the Summons; and
- The contact information for the Plaintiff or the Plaintiff’s attorney if they have one.
If you have been served with a copy of the Complaint, it is very important to file paperwork in response to the Complaint. If you do not file a response of some sort, the Plaintiff will ask the court to give it everything it asked for in the Complaint.
The usual response that Defendants file to a Complaint is called an “Answer.” Writing and filing an Answer can be complicated. If possible, you should hire an attorney to help, or see if you qualify for a free attorney (call our free helpline to begin this process: 1-800-220-0350). You can represent yourself if you are unable to find an attorney. Persons who represent themselves in court are called “pro se” (the legal term for representing yourself).
The Answer must be filed within 30 days from the day that you got the Summons and Complaint. In the Answer, you must respond to each paragraph in the Complaint by either agreeing or disagreeing with what is said in that paragraph. In the Answer, you must also tell the court about any defenses you have (a defense is a legal argument about why the Plaintiff should not win the case). Possible defenses may be that you have already paid the debt or that you do not know if the Plaintiff actually owns the debt. There may be other defenses; therefore, we strongly urge that anyone filing papers in court contact an attorney for assistance.
Many Homeowners Lose Their Homes Because Of What Happens Next
After the 30-day period to file the Answer has passed, the Plaintiff will probably file either a Motion for Default Judgment or a Motion for Summary Judgment. A Motion is what is filed in court to ask the judge to do something.
- A Motion for Default Judgment can be filed by the Plaintiff if you, the homeowner, do not file anything at all in response to the Complaint. This type of Motion asks the judge to automatically let the Plaintiff win without going to court and having a trial. The Plaintiff can win the case very quickly through a Motion for Default Judgment. Plaintiffs win cases this way all the time because a lot of homeowners ignore the court paperwork they get. Don’t ignore the court paperwork! Call us for help!
- A Motion for Summary Judgment can be filed by the Plaintiff when the Plaintiff believes that its case is a clear win, and that therefore there is no need to even have a trial to discuss what the Plaintiff has said in its Complaint. If the Plaintiff wins this motion, it has basically won the whole case.
If the Plaintiff files either type of motion discussed above, you have 15 days (plus 3 days for mailing) to file a paper called a Response. The Response tells why you disagree with the Plaintiff’s Motion. The judge will then issue an Order which tells everyone involved whether or not the Plaintiff wins its Motion.
If the Plaintiff wins the case, then the court will select a person called a Special Master to sell the house at a public sale called an “auction.” The public auction is usually held on the front steps of the courthouse. At the auction people can bid on the property being sold. The property will be sold to the highest bidder. The Plaintiff will schedule the auction and must file a Notice of Sale at the court. The Notice of Sale tells the date and time of the auction. The Plaintiff must send the Notice of Sale to the homeowners. In cases where the Plaintiff is a bank, it is common for the Plaintiff-bank to buy the house at the public auction.
If the house is sold at auction for less than the amount the judge said you owed on it, you will have a deficiency. This means you still owe the difference between what you owed the lender on the property and what it sold for at auction. For example, at the time of the sale, you owed $130,000 on the house. The bank then bought it back at auction for $100,000. The difference in the two amounts is the deficiency ($30,000). The Plaintiff can ask the judge for a court order to collect the deficiency by taking some of your wages each month, seizing your personal property, or taking money from your bank account.
After The House Is Sold
After the house is sold, you still have a period of time (usually 30 days) to buy back the property. To do so, you must pay, to the new purchaser of the property, the entire amount that was paid at the auction, plus taxes, interest, and penalties. To get back the property this way is called “redemption” or “redeeming.” The amount of time you have to redeem the property is written in your original mortgage and is usually 30 days. New Mexico foreclosure law allows you to ask the court to increase this time period up to nine months. You should request this longer redemption period in your Answer to the Complaint.
If you are not able to redeem the property, then you will have to move out. If you do not move out, the new owner may give you paperwork called a 3-day Notice to Vacate. If you still don’t leave, the new owner can ask the judge for a court order called a Writ of Assistance. A Writ of Assistance allows the sheriff to make you leave.
Details You Should Know If You Are Filing Something In The Courts
The papers the Plaintiff delivered to you (the Summons and Complaint) will say at the very top in which County and court the Complaint was filed. There are 13 different District Courts in New Mexico (click here for a map of New Mexico courts). Foreclosure cases are filed in state district courts, not magistrate or metropolitan courts. Any papers you file in the case must be filed in the same court in which the Complaint was filed. Some courts have offices to help people who cannot afford a lawyer. Call the court and ask if they have such an office. Or call our free helpline to see if you qualify for a free attorney (1-800-220-0350).
When you are filing papers with a court, take the papers to the court clerk’s office. Take the original, signed copy of the papers, plus two extra copies. The court clerk will stamp each copy with the court’s stamp to prove the date the papers were filed at the court. The court clerk will keep the original papers to give to the judge. You should keep one copy for yourself. New Mexico law requires that you must also mail one copy to the other side in the case or their lawyer if they have one. Remember that you can find the Plaintiff’s address (or their attorney’s address) on the Summons.