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Foreclosure Attorney Michael Stites
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Step by Step How to Respond to a Foreclosure Summons:
Here is how to respond if you get served a foreclosure complaint & summons. (The document you receive when a foreclosure lawsuit is filed against you) Please know, filing an answer may not be the best option. Ideally you want to see if you can get the case dismissed before acknowledging the lawsuit. It is best to consult with an attorney prior to taking action.
The foreclosure summons is the legal document that highlights the foreclosing party’s claims for the lawsuit they are filing against you. Step by step the summons will include:
1. Details of the mortgage
2. Details of the promissory note
3. A description of the property to be foreclosed on
4. When the loan was defaulted
5. The total amount still owed
6. A list of the borrowers with their interest in the property
7. What the lender wants the court to do to fix the problem (Usually the lender will request the right to sell the property and use the money to pay for the remaining debt.)
8. Sometimes a request for a deficiency judgment if the foreclosure sale does not cover the balance owed. (In Florida this is often a completely separate lawsuit)
There Is Not Enough Knowledge To Admit Or Deny
This will be the most common response when setting up to defend your foreclosure. This forces the foreclosing party to produce more evidence for their claim on your home. If we want to use this on allegations 1 though 12 we can either repeat the same thing for each paragraph or just summarize it like the example below:
ANSWER
COMES NOW the Defendant, JOHN DOE, a Florida resident, by and through its undersigned counsel, and answers the Plaintiff’s Complaint and alleges:
1. That Defendant, JOHN DOE, is without knowledge sufficient to admit or deny the allegations of Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12b of Plaintiff’s Complaint and demands strict proof thereof.
2. The Defendant, JOHN DOE admits the allegations of Paragraph 12a of Plaintiff’s Complaint to the extent that Defendant, JOHN DOE, claims an interest in the subject property, but is with knowledge sufficient to admit or deny the allegations of priority contained therein and demands strict proof thereof.
3. That as an affirmative prayer for equitable relief from this Court, this Defendant prays that in the event of judicial sale of the subject property results in a surplus of funds after satisfying Plaintiff’s Judgment that such surplus be applied toward this Defendant’s claim for unpaid assessments, together with cost, interest, late fees, and reasonable attorney’s fees incurred in the collections, pursuant to Florida Statute and the Declaration for JOHN DOE, recorded in Plat Book 1932 at Page 2808 of the Public Records of Osceola County, Florida, as far as such surplus is able.
AFFIRMATIVE DEFENSE
BIG BANK MORTGAGE CORPORATION,
Plaintiff,
Vs.
JOHN DOE, ET.AL.,
Defendants.
/
IN THE CIRCUIT COURT OF THE 9TH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NUMBER ####AA807MF
ANSWER AND
AFFIRMATIVE DEFENSE
— PART ONE OF SAMPLE ANSWER TO FORECLOSURE SUMMONS STARTS BELOW HERE —
These are the numbered foreclosure summons responses. Since most of the responses will state the same thing #1 has been condense to cover most of the lender’s allegations.
— THIS IS THE END OF PART ONE OF THE ANSWER TO THE FORECLOSURE SUMMONS —
Your Affirmative Defenses can go after you have responded to each of the lender’s numbered allegations.
Affirmative Defenses – This is where you fight the claims
The first part of your written response to the summons addresses each of the lender’s allegations. You now have the option to draft and submit affirmative defenses below your answer. An affirmative defense builds your argument that the foreclosure lawsuit should never have been filed against you. So if you know you paid the past due amount and are caught up (this is called a mortgage reinstatement), you would put that as one affirmative defense. You can submit multiple defenses with your answer but each should be numerically labeled.
Affirmative Defenses to lost promissory notes
There are many different defense arguments you can make but it really depends on what the lender is accusing you of. If the lender claims the original note was lost or destroyed you can suggest that the plaintiff (the lender) is not the real party of interest so they should not be allowed to foreclose. Each affirmative defense is usually backed by references to previous court rulings of a similar manner. You explain how the previous ruling relates to the case. More information on our page adding affirmative defenses to your foreclosure summons will give you an example of what it looks like.
Part 2 -
Here is the plaintiff that is filing a lawsuit against JOHN DOE. Notice it is a different lender from the original because WELLS BANKER is claimed to be a “successor trustee.”
Why Are Banks More Willing to Negotiate With Attorneys Compared To Borrowers?
A good foreclosure attorney will find problems with the lender’s foreclosure lawsuit and exploit them to your advantage. This is especially helpful when trying to get leftover debt waived.
Stop Your Foreclosure (before you have been served)
This time should be used to work out a plan with your lender if you are planning on keeping your home.
Can I Defend Against a Foreclosure Without a Lawyer?
Find out why the average homeowner generally does not have the resources available to defend against foreclosure without an attorney.
Determine If Your Home Foreclosure is Eligible to be Defended
Answer 3 quick questions to see if you have a foreclosure defense case.
Related Topics:
Created by Attorney Michael Stites & contributing editor Jared Speck updated 10/22/2015
IMPORTANT: The summons is used to let the defendants know their rights and gives a certain number of days (depending on the state) for the defendants to respond with an answer to the foreclosure allegations. If you live in Florida, you only have 20 days to file and answer to their complaint.
Lis Pendens – this is a legal document filed with the county land records to give the public, other lienholders, and homebuyers notice of the pending foreclosure lawsuit. This is filed the same time the foreclosure summons is sent out.
Foreclosure Summons Overview:
– FORECLOSURE SUMMONS EXAMPLE #1 STARTS BELOW HERE –
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA
BIG BANK MORTGAGE CORPORATION,
Plaintiff(s),
vs.
JOHN DOE;
Defendant(s),
. /
CASE NO. ####AA 807MF
Division
VERIFIED COMPLAINT FOR RESIDENTIAL FORECLOSURE
Comes now, the Plaintiff, BIG BANK MORTGAGE CORPORATION by and through the undersigned counsel, and hereby sues Defendant, alleging:
COUNT ONE: FORECLOSURE
1. This is an action to foreclose a Mortgage on real property located at (Your properties address) in OSCEOLA country.
2. The subject Promissory Note (“Note”) dated November 3, 2011, was executed and delivered to Plaintiff or Plaintiff’s predecessor in interest. The Subject Mortgage securing payment of the Note was recorded on or about November 21, 2011, in Official Records Book 4203, at Page 428, of the Public Records of Osceola County, Florida, and mortgaged the subject real property then owned by and in possession of the mortgagor(s)., A copy of the subject Promissory Note and Mortgage are attached hereto and incorporated herein.
3. The Mortgage of the Plaintiff is a lien superior in dignity to any prior or subsequent right, title, claim, lien or interest arising out of mortgagor or the mortgagor’s predecessors in interest.
4. Plaintiff is the holder of the Note and entitled to enforce the terms thereof as Plaintiff is in possession of the original Note payable to Plaintiff as the original lender.
5. JOHN DOE has defaulted under the covenants, terms and agreements of the Note in the payment due September 3, 2013, and all subsequent payments have not been paid.
6. JOHN DOE has breached the covenants, terms and agreements of the Mortgage by virtue of failure to make the payments due under the terms of the Note.
7. JOHN DOE owes Plaintiff $105,621.28 that is now due and owing on principal, plus interest from and after August 3, 2013 and title search expenses for ascertaining necessary parties to this action.
8. In order to protect its security, the Plaintiff may have advanced and paid Ad Valorem Taxes, premiums on insurance required by the Mortgage and other necessary costs, or may be required to make such advances during the pendency of this action. Any such sum so paid will be due and owning Plaintiff.
9. The record legal title to said mortgaged property is now vested in Defendant(s), JOHN DOE and upon information and belief Defendant(s) hold possession.
10. All conditions precedent to this acceleration of the Note and to foreclosure the mortgage of been fulfilled and have occurred.
11. For purposes of foreclosure, the Plaintiff has retained the undersigned attorneys and is obligated to pay said attorneys a reasonable fee for services rendered.
12. Plaintiff alleges that the claims of the remaining Defendants are secondary, junior, inferior, and subject to the prior claim of Plaintiff. More particularly, the remaining Defendants claim some right, title and interest in and to the mortgaged premises in the following manner:
a. The Defendant, OTHER COMPANY WITH LIEN, may claim some right, title or interest in the property herein sought to be foreclosed by virtue of that certain Declaration of Covenants, Conditions and Restrictions recorded in Office Records Book 1932, at Page 2808, of the Public Records of Osceola Country, Florida, and that certain Judgment recorded in Official Records Book 4246, at Pages 376 of the Public Records of Osceola County, Florida; however, said interest, if any, is subordinated, junior and inferior to the lien of Plaintiff’s mortgage.
b. The Defendants, UNKNOWN TENANT 1, UNKNOWN TENANT 2, UNKNOWN TENANT 3, UNKNOWN TENANT 4, the names being fictitious to account for parties in possession, may claim some right, title or interest in the property herein sought to be foreclosed by virtue of possession or some other unknown interest, the exact nature of which is unknown to Plaintiff and not a matter of public record; however, said interest, if any, is subordinate, junior, and inferior to the lien of Plaintiff’s mortgage.
WHEREFORE, Plaintiff prays the Court as follows:
Plaintiff requests that the Court ascertain the amount due Plaintiff for Principal and interest on the Note and Mortgage and fore late charges, abstracting, taxes, expenses, and cost, included attorney’s fees, plus interest thereon; that if the sums due Plaintiff under the Note and Mortgage are not paid immediately, the Court foreclose the Mortgages and the Clerk of the Court sell the Property securing the indebtedness to satisfy Plaintiff’s mortgage lien in accordance with the provisions of Florida Statues §45.031 (2006): that the Court retain jurisdiction of this action to make any and all further orders and judgments as may be necessary and proper, including the issuance of a writ of possession and the entry of a deficiency decree, unless any Defendant personally liable is discharged from liability pursuant to the provisions of the Bankruptcy Code, 11 U.S.C § 101, et, seq.
VERIFICATION
Under penalty of perjury, I declared that I have read the foregoing Verified Complaint for Residential Foreclosure, and the facts alleged therein are true and correct to the best of my knowledge and belief.
BIG BANK MORTGAGE CORPORATION BY
LOAN HELPERS, A DIVISION OF
FINANCIER SERVICING, INC NKA
LOAN HELPERS, LLC AS ATTORNEY
IN FACT UNDER A LIMITED
POWER OF ATTORNEY
By:
Printed Name:
Date:
Super Bank Attorneys LLP
Attorney of Plaintiff(s)
151 Sue You Ave.
Orlando, FL 32801
Phone 123.456.7890
PLEASE NOTE: 15. U.S.C. §1692(G) (d) OF THE FARE DEBT COLLECTIONS PRACTICES ACT PROVIDES:
(d) Leal pleadings. A communication in the forum of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsections (a) of this section.
– FORECLOSURE SUMMONS EXAMPLE #1
ENDS HERE –
This is the address of the foreclosing party’s attorney. You will send a copy of your answer here as well as the county’s clerk of court
These are the numbered allegations you will want to respond to one by one. There are 12 allegations in this foreclosure summons example.
Each foreclosure lawsuit is assigned a case reference number. This is used to track what is happening with the lawsuit. If you contact an attorney, they will need to know the case number in order to pull the court docket.
If You Chose to Defending Your Foreclosure, You Written Answer to the Summons May Look Something Like This:
Let’s say you originally had taken out a mortgage with SUNSHINE BANK but WELLS BANKER has just served you a foreclosure summons. They attach a copy of the promissory note and the mortgage to the back of the summons. The mortgage labels SUNSHINE BANK and MERS (Mortgage Electronic Registration Systems, Inc.) as holders of the mortgage when it was signed. In the front page top left corner of the summons it may look like this:
WELLS BANKER, AS SUCCESSOR TRUSTEE
UNDER SUPERSTAR MORTGAGE FUNDING TRUST,
SERIES 2010-
Plaintiff(s)
Vs.
JOHN DOE
WELLS BANKER is not the same bank JOHN DOE took the original mortgage out with. How can this happen? This is actually not uncommon. Banks frequently sell debt to other lenders and record keeping is not always perfect. In the foreclosure summons (the paper you were served), under the numbered paragraphs you may see something like this:
COUNT I
1. This is an action to establish a promissory not under Section 673.3091 Florida Statutes.
2. On March 24, 2006, in Osceola County, Florida, JOHN DOE executed and delivered to SUNSHINE BANK, a promissory note in the principal amount of $105,621.28. Attached hereto is a substantial copy of the note.
3. The original promissory note was lost or destroyed subsequent to Plaintiff’s acquisition thereof, the exact time and manner of said loss or destruction being unknown to Plaintiff. Plaintiff was in possession of the promissory note and entitled to enforce it when loss of possession occurred. The loss of possession was not the result of a transfer by Plaintiff or a lawful seizure. Said note is not in custody or control of Plaintiff.
Normally there are more allegations but we are focusing on the first 3 for example purposes. Take a close look at paragraph 3. The lender is basically saying they can’t find the original note but they still feel they have the right to foreclose on you. Use this to your advantage! In your answer to this allegation you could put this:
Why standing is important: The foreclosing party needs to prove that they have the right to foreclose on JOHN DOE’s home. The original promissory note should be used to prove the bank has standing. If they do not have the promissory note then the bank must find another way to show that they have a standing claim to JOHN DOE’s home.
Here is where they are saying the original promissory note was lost. You may be able to use this to help your defense because you may be able to challenge that WELLS BANKER does not have standing.
ANSWER TO COUNT I
1. Defendants are without knowledge as to the allegations contained in this paragraph, therefore, they are denied.
2. Deny. Strict Proof Demanded.
3. Defendants are without knowledge as to the allegations contained in this paragraph, therefore, they are denied.
Notice #2 we chose to outright deny. We are forcing them to prove that they own the promissory note and must produce the documentation that shows it.
We now have 12 allegations we need to respond to from the summons example above. For each one we must admit, deny, or say there is not enough knowledge to admit or deny the allegation.
To Admit
If you admit the allegation, the court will take it as fact. For example let us say we are willing to agree that paragraph 12a is true. Admitting the allegation of 12a would probably look like this:
The Defendant, JOHN DOE admits the allegations of Paragraph 12a of Plaintiff’s Complaint
To Deny
If you deny any allegations the lender will need to prove it was true. For example let us say we want to outright deny paragraph 5 because you know for a fact you made the payments. With this you would need to provide proof as to why you are denying the allegations. Your proof would probably be copies of when you made your payments.
The Defendant, JOHN DOE denies the allegations of Paragraph 5 of Plaintiff’s Complaint
That Defendant, JOHN DOE, is without knowledge sufficient to admit or deny the allegations of Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12b of Plaintiff’s Complaint and demands strict proof thereof.
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- Admit the allegation
- Deny the allegation
- State there isn’t enough knowledge to admit or deny the allegation
To fight the foreclosure, you must draft a written answer that addresses each complaint and file it with the courts. Next to each paragraphed complaint or statement there should be a number. (This keeps everything organized for when you write your response.) You must respond to each number by saying you:
If you deny any allegations the lender will need to prove the allegation was true. If you admit an allegation, the court will takes it as fact.
How to answer your foreclosure summons -
the 3 basic responses