BEFORE YOU BEGIN
In general, it is best if you seek assistance from an attorney to answer a complaint. Answering requires you to assert in writing any legal defenses or counterclaims that you have against the plaintiff. This can be complicated, and it is a good idea to have an attorney familiar with mortgage servicing practices and foreclosure law review the facts of your case.
TIME TO RESPOND
- You have to file your Answer within 30 days of the day you were served.
- You also have to serve your Answer on the lender’s attorney. Look at the page marked SUMMONS for the attorney’s address.
- If the due date falls on the weekend or a holiday when the Court is closed, the due date is the next available day. Start counting from the day after you are served.
- As explained in the Foreclosure Intervention section, you also have 30 days to request Foreclosure Intervention. If you are eligible for Foreclosure Intervention and make your request within 30 days of service, the foreclosure will be on hold until the Foreclosure Intervention process is complete. If you are unable to resolve the case in Foreclosure Intervention, you should receive a letter telling you that you have 30 days from the date of the Foreclosure Intervention denial to file and serve your Answer.
- It can often be a good idea to file your Answer and request Foreclosure Intervention at the same time.
FILLING OUT THE ANSWER
When preparing your Answer, it helps to have the paperwork that you were served in front of you. First, locate the Complaint. It will say “COMPLAINT” in the same place where you can see the word “ANSWER” in the sample caption below.
An Answer has several parts that need to be filled out. We will discuss each part below.
The Caption
- This tells the court what lawsuit you are answering. MAKE SURE THAT THIS IS CORRECT!
- If you have the wrong information here, they might put it in the wrong file. If that happens, they won’t know you answered, and you could lose the case automatically.
- You can copy this information from the caption of the Complaint you were served.
- The Case Number (No.), also called the Docket No., needs to be the same one the Plaintiff uses. In most cases, this should be printed sideways down the right hand margin of each page.
The First Defense
- While looking at the Complaint, go through each numbered paragraph and decide whether you agree or disagree with that statement.
- List all of the numbers for the paragraphs you agree with on Line 2.
- List all of the numbers for the paragraphs you disagree with on Line 3.
- If you feel that you need to explain or clarify your response to something the Plaintiff said in the complaint, you can write that in Line 4. Use additional pages if necessary.
- If you don’t have enough information to admit or deny something, you can say that in Line 4.
- When talking about something the Plaintiff said, mention to the paragraph number so people can understand which one you are talking about.
- If you are not sure about something, it is generally safest to just deny it. Once you admit something, you cannot argue about it later.
Affirmative Defenses and Counter-Claims
- The sample Answer has a page with blank lines titled Defenses and Counterclaims.
- A Defense is where you tell the court why the lender should not get what it wants. You don’t need to repeat that you disagree with what they said, but if something they didn’t mention would make a difference in the case, this is where you say it.
- There are also more technical legal defenses. Determining whether you have one of those legal defenses requires a level of expertise that goes beyond what this classroom can offer. You should consult an attorney if you want to see if you have any of those defenses.
- You also have the opportunity to raise counterclaims, in which you are suing the lender back for something they did wrong. Determining whether you have a counterclaim requires a level of expertise that goes beyond what this classroom can offer. You should consult an attorney if you want to see if you have any counterclaims.
- You need to ask for everything you plan to ask for now so that the Court knows as much as possible before you meet in court. However, you should keep it simple and vague – just enough to understand why you should get what you’re asking for. Save the details for court.
Conclusion
- Summarize everything you have asked for in the answer in a simple, plain list that tells the court what you want it to do for you.
Signature and Contact Information
- Fill in the blanks on the signature block with your information. Sign on the signature line.
- This is how the court and the lender’s attorney will contact you. Make sure that you can get mail at that address, and make sure that your phone number is working.
- If your address or phone number change later, you will need to let the court and the mortgage company’s attorney know about the change in writing.
Page Numbers
- At the bottom of each page is a pair of blanks. This is for page numbers.
- Using the first blank on each page, number the pages of your Answer.
- After you’ve numbered all the pages, but the total number of pages in the second blank on every page.
- For example, if your answer has three pages, you would put “1 of 3” on the first page, “2 of 3” on the second page, and “3 of 3” on the last page.
Filing and Serving your Answer
- Once you have completed and signed your Answer, make two copies of it.
- Take the original and the two copies to the Clerk of Court. The clerk will timestamp all three copies, keep the original, and give you back the two copies.
- You should keep one copy for your records, and mail the other copy to the lender’s attorney by certified mail with a return receipt (green card). Be sure to keep the certified mail receipt as proof that your Answer was mailed within the 30 day deadline. The green card will be proof that they received it.
- When you get the green card back, you should write a brief letter to the court with the case name (Bank vs. You) and case number on it. The letter should state that you served the Answer on the lender’s attorney, and what day they signed the green card. You should attach the green card to the letter, make a copy, and take both to the Clerk of Court to file it. They will give back your copy. You should keep that for your records.