Preventing Foreclosure: Contested Answers to Foreclosure Complaints, “Legalese” and the Risk of Not Being Represented by a Lawyer


“We strongly advise the Fleets to engage counsel… Obtaining counsel will help the Fleets to navigate the shoals ahead of them and give them a chance to litigate on equal terms with Bank of America.” California Court of Appeals in Fleet v. Bank of America, G050049 (Super.Ct. No. CIVRS1204737).

Fleet v. Bank of America, an appeal decided by the California Court of Appeals, once again presents a too-often told story of homeowners who fell behind on their mortgage payments and sought to avoid the loss of their home by means of a mortgage modification.  They diligently complied with the instructions of the Bank and relied upon the Bank’s assurances that would receive the modification they sought.  Based upon these assurances, they made the required mortgage payments they and spent $15,000.00 to repair their home.  But shortly thereafter, they learned that their home had been sold when the new purchaser of their home appeared at their door and demanded they move out.

What the Fleets did not do is retain an attorney to represent them.  Even after they learned about the sale of their home, they apparently believed that because the conduct of the Bank was so outrageous, they would surely prevail by simply telling the Court what had happened in a Complaint against the Bank which they prepared and filed by themselves.  Their Complaint was dismissed by the trial court.  The Fleets appealed the trial court dismissal of their Complaint, again without retaining counsel.  In its sympathetic opinion, the California Court of Appeals sent the case back to the trial court and strongly advised the Fleets to do what they should have done in the first place – Get a Lawyer.

“The trial court sustained BofA’s demurrer to the Fleets’ original complaint and told the Fleets they had to plead with more specificity. The Fleets evidently took this admonition to mean they had to try their case in their amended complaint. The result is a complex and fact-intensive document that requires concentration and dogged analysis. The Fleets’ appellate brief demonstrates mastery of English but a natural – and commendable – unfamiliarity with legalese. This might be a good time to associate in someone who speaks that tongue.” Fleet supra emphasis added.

Although the foreclosure process in California and New Jersey are different, the advice of the California Court of Appeals about the importance of retaining an attorney is, if anything, greater in New Jersey than California.  Most foreclosures in California do not proceed through the Courts. Foreclosure sales are conducted by a Trustee who holds a Deed of Trust signed by the homeowners which gives the Trustee the power to sell the property if the mortgage payments are not made.  To foreclose on a property in New Jersey, a Foreclosure Complaint must be filed in the Superior Court, Chancery Division, in the County in which the property is located, and the property may be sold only after a foreclosure judgment is entered.

Filing a Contesting Answer to foreclosure complaint is one of a number of actions that may enable a New Jersey property owner to avoid foreclosure. * The contested answer must be filed no later than 35 days after service of the foreclosure complaint, unless the time is extended by consent or court order.

To borrow the words of the California Court of Appeal, the preparation of a Contested Answer to a Foreclosure Complaint requires a familiarity “….with legalese. This might be a good time to associate in someone who speaks that tongue.”


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