A Notice of Appearance is a document filed with the Court that alerts the Court that you would like to be an active participant in the foreclosure proceeding. By filing a Notice of Appearance, you are telling the Court that you want copies of all future relevant legal documents related to the foreclosure to be sent to you. (If you have chosen to file an Answer, you automatically have made this request and do not need to file a Notice of Appearance.)
If you decide to NOT file an Answer, you should file a Notice of Appearance which will guarantee that you will receive all future pleadings and documents in your court case, including notice of sale. If you do not file an Answer or a Notice of Appearance, the Bank is NOT required to send you copies of legal documents filed with the Court later in the foreclosure process. Therefore, we HIGHLY recommend that you file either an Answer or a Notice of Appearance at this point in the foreclosure proceeding. If you received a Summons and Complaint, you have the right to serve and file an Answer to the Complaint. Sometimes, however, it may not be a good idea to file an Answer. You have to make that choice if you are unable to find an attorney to help you. There are two possible reasons why you may NOT want to file an Answer. 1. You may not have any legal defenses or claims to the foreclosure and you simply fell behind on your mortgage because of a loss of income. 2. If you file an Answer and are unsuccessful in convincing the Court that you are correct, you will be responsible for the legal fees that the Bank must pay to defend the foreclosure. This will increase the amount of money you owe the Bank, which could increase the amount of money you will have to pay back. This ultimately can make it even harder for you to obtain a loan modification or some other type of workout.
An Answer is a written response to the Complaint, where you list any and all of your defenses to the foreclosure, as well as any counterclaims you may have against the Bank. This section of the guidebook will explain step-by-step how to write and file an Answer if you can’t find an attorney to help you.
If you have received a Summons and Complaint, you have the right to serve and file an Answer to the Complaint. This will help you preserve your legal rights and guarantee that you receive notice of all future actions in the court case, including the sale of your home. If you don’t file an Answer, the judge may enter a “default” judgment against you (which means you did not submit an Answer and therefore are not contesting the Bank’s legal right to foreclosure). In addition, if you don’t file an Answer you will probably lose your right to raise any defenses to the foreclosure down the road. Sometimes, however, it is not helpful to file an Answer. If you are unable to find an attorney to help, you will have to make that choice. There are two possible reasons why you may NOT want to file an Answer. 1. You may not have any legal defenses or claims to the foreclosure 2. If you file an Answer and are unsuccessful in convincing the judge that you are correct in your claims, you will be responsible for the legal fees that the Bank must pay to successfully pursue the foreclosure. This will increase the amount of money you owe the Bank. This increase could ultimately make it harder for you to obtain a loan modification or some other type of workout. If you decide to NOT file an Answer, you should file a Notice of Appearance which will guarantee that you will receive all future pleadings and documents in your court case, including notice of sale. (There are instructions in this guidebook if you choose to file a Notice of Appearance instead of an Answer.) If you do not file an Answer or a Notice of Appearance, the Bank is NOT required to send you copies of legal documents filed with the Court later in the foreclosure process.
If you were served personally (the court papers were handed to you in person), you have 20 days from the date of service (the date you were handed the papers) to file your Answer. • If you were served by mail (you didn’t receive a copy personally but instead received the foreclosure summons only by mail), you have 30 days to file your Answer. If it has been more than 30 days since you were served, you may still be able to file an Answer but you will need to ask permission from the Court. One way to approach this situation is to draft the Answer, try to file it with the Court and serve it on the Bank’s attorney. The Bank’s attorney may try to claim that your Answer is too late to accept, but the Court also may decide to allow you to file your Answer, so it is worth trying.
The information you need to fill in your Answer, comes from the Summons and Complaint you received, your mortgage papers, and your personal experience.