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Are you a homeowner facing a bank foreclosure on your residence. Browse our New Jersey Foreclosure FAQs to get some answers to your questions. (As appearing on the New Jersey Judiciary with certain modifications.)
If I don’t get an extension of time to answer and am past the 35 days can I still file an answer? Would it have any bearing on the case?
I am the tenant of a property that is being foreclosed upon, what do I have to do and what are my rights?
If the judge does not enter summary judgment in the Plaintiff’s favor or strike the defendant’s answer or if the Plaintiff’s attorney does not file a motion, the judge will schedule a pre-trial conference. How long that will take is dependant on the judge’s calendar. The defendant will receive notices alerting him of these matters which he should read and follow carefully.
If a judge grants a motion for summary judgment or motion to strike the answer, deeming the case non-contesting, the case will be transferred back to the Office of Foreclosure and the Plaintiff may proceed to seek a final judgment of foreclosure against the defendant.
What types of motions are filed with the Office of Foreclosure and what types are filed with the county?
Types of Motions filed with the Office of Foreclosure:
- Motion for Entry of Final Judgment
- Motion for Entry of Default Out of Time
- Motion to Vacate Default (if the final judgment package has NOT yet been filed)
- Motions Extending Time to Answer (if the final judgment package has NOT yet been filed)
- Motion to file an Amended Complaint (when any answer—contesting or non-contesting—has been filed)
- Motion for Surplus Funds (if payment of surplus funds is not contested and the party seeking the funds was a party to the original foreclosure case)
Examples of Motions filed with the county judges:
- Motion Extending Time to Answer (if the final judgment package has already been filed)
- Motion to Vacate Default (if the final judgment package has already been filed)
- Motion for Summary Judgment
- Motion Appointing Guardian Ad Litem
- Motion Appointing Rent Receivers
- Motion Appointing Attorney for Party in Military Service
- Motion for Substituted Service
- Motion to Set Aside Final Judgment or Summary Judgment
- Motion to Stay Foreclosure Proceeding (There are various reasons to stay foreclosure proceedings; the defendant will need to contact an attorney to determine if this option is available to him.)
- Motion to Stay Sheriff’s Sale
- Motion to Stay Eviction
- Motion to Vacate Sheriff’s Sale
The types of correspondence a I receive from the mortgage company are not the same pleadings found in my foreclosure file.
Can the Superior Court confirm that the information found in my foreclosure file proves that an illegal practice has been done by the mortgage company?
Why have certain pleadings been filed in the foreclosure action and what bearing does the document have on the foreclosure case?
Foreclosure Complaint. This document is filed by the lender (plaintiff), usually a bank or mortgage company, after the debtor-homeowner (defendant) defaults on his or her loan. The Foreclosure Complaint states the terms of the mortgage and the event of default and asks the court to allow the property to be sold to satisfy the debt. It is the first document filed by the lender which starts the legal Foreclosure process.
Answer. This document is filed by the defendant and provides a response to all of the allegations in the Complaint. The Answer gives notice to the court that the defendant opposes the relief requested in the Complaint.
Affidavit of Non-Military Service. This document is filed by the plaintiff and certifies as to whether or not the defendant(s) are in active military service. The purpose of this document is to protect the rights of those who may not be able to defend themselves in a foreclosure action because they are currently serving in the military.
Affidavit of Service/ Return of Service. This document is completed by the process server (the person who served the summons and complaint on the defendant) and provides proof to the court that the defendant was, in fact, properly served.
Affidavit of Inquiry. When a defendant is not personally served, this document must be submitted by the plaintiff’s attorney, explaining why the defendant(s) had to be served by alternate means.
Request for Default. When a defendant fails to file an answer to the foreclosure complaint, the plaintiff will file this document with the court to notify it that the defendant(s) failed to answer. A Request for Default must be submitted for the court to formally note on its records that the defendant failed to defend against the claim. A plaintiff cannot seek a Final Judgment in Foreclosure unless the plaintiff first obtains an entry of default against the defendant(s).
Notice of Motion for Default and Order for Default. These documents serve the same purpose as the Request for Default, but are filed in place of the Request for Default when more than 6 months has passed since the defendant failed to file an answer. If the motion is granted an Order for Default will be entered by the court.
Notice of Mailing Default (Proof of Mailing). The plaintiff submits this document to notify the court that it has mailed a copy of the entered Request for Default or the Order for Default to the defendant, as required by the Court Rules.
Certification of Mailing Notice to Cure. This document is filed by the plaintiff in cases where the Fair Foreclosure Act applies. This document notifies the court that the plaintiff has mailed the appropriate notice to the defendant and provides the court with a copy of the mailed notice.
Mediation Certification. This document is submitted by the plaintiff to notify the court whether or not the plaintiff mailed a mediation packet to the defendant.
Notice of Motion for Final Judgment and Proof of Amount Due. This document is submitted to request that a Final Judgment of Foreclosure be entered by the court. It includes a breakdown of the amount owed by the defendant. If the defendant has a valid objection to the amount due as stated in the Affidavit attached to the Notice of Motion for Final Judgment, he must submit it to the court within 10 days of receiving the Motion.
Final Judgment. The Final Judgment of Foreclosure is an order from the court which includes the following: 1) amount due to the plaintiff, 2) orders payment to the plaintiff, 3) provides for the judicial sale of the mortgaged property, 4) bars the defendant’s right to redeem the mortgage after default, and 5) if requested, awards possession of the mortgaged property to the plaintiff/purchaser.
Writ of Execution. This document is submitted with the Final Judgment document and is used to enforce the Final Judgment. The Writ of Execution authorizes the sheriff to sell the property in satisfaction of the Final Judgment of Foreclosure.
If a pleading is returned for corrections, and copies of the pleading have already been sent to the other parties involved, do the corrected pleadings need to be re-served on the other parties?
An entry of default against a defendant simply means that the Court notes on its records that the defendant failed to defend against the claim by filing an answer with the Court. An entry of default is not a final foreclosure judgment, nor does it give the Plaintiff the right to take and sell the defendant’s home. After entry of default is made, the Plaintiff’s attorney is then allowed to seek a final judgment of foreclosure against the defendants.
After a Final Judgment has been filed, how much time do I have to file a motion objecting to the final judgment and is that the only way a foreclosure can be stopped?
Once a Final Judgment has been entered, the only way a defendant can object to it is by motion to the General Equity judge. A defendant should discuss with an attorney whether the defendant has valid circumstances which may warrant the reversal of a final judgment.
A bankruptcy filing can stop a foreclosure case, though the bank can petition the bankruptcy court for permission to continue with the foreclosure. You should consult with an experienced bankruptcy lawyer about whether bankruptcy is an appropriate option to help you save your home.
Can’t find the answer you’re looking for? Contact our experienced New Jersey foreclosure lawyers today to discuss your case. For emergencies call us at 201-498-0400.
Providing foreclosure defense to residents of Bergen County, Essex County, Hudson County, Middlesex County, Mercer County, Monmouth County, Morris County, Passaic County, Somerset County, Union County, and elsewhere in the Garden State.