Foreclosures and Ejectments

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November 26, 2024

Client Story

A foreclosure is the process by which a lender attempts to retake possession of the property of a homeowner who has fallen behind on their payments for an extended time. If your property is being foreclosed on, it’s possible to defend yourself against it—and potentially options to reclaim the property if you lose it.

Context

Foreclosure begins after the homeowner has failed to make payments on their mortgage for at least 120 days. Most mortgages will include a means for the lender to foreclose on your home in this way.

The lender must publish notice of the foreclosure for at least 3 consecutive weeks in a newspaper distributed in the county where the property is located. This notice must include the time, place, and terms of the sale, as well as an accurate description of the property. If the lender fails to do this as described, it may be worth discussing with a lawyer if this could be helpful to your case.

After the foreclosure, the lender must file an ejectment action to remove you from the home.

Requirements

You will need

  • A copy of your mortgage, deed, and all other documents from when you purchased the home 
  • The foreclosure notice 
  • Any other correspondence from your lender 
  • Ejectment lawsuit, if you have received it 
  • Answer form for ejectment 
  • Any other court papers from the ejectment

Steps

Step 1: Redemption

After a foreclosure occurs, you will be given a 10-day demand to vacate from the property. If you choose to move out within those 10 days, you will have a right to redeem the home; that is, to reclaim it by paying off the mortgage within 1 year.

If you do not move out within 10 days, then the party who purchased the home will need to file an ejectment action in the county’s Circuit Court in order to remove you from the property. This process can take 2 to 3 months, so you may have additional time to find new accommodations or file a legal challenge.

In the former case, if you choose to redeem your property: you must send a written demand to the person or entity that purchased the home at its foreclosure sale. You must send this letter no less than 15 days before the end of the 1-year redemption period.

If the new owner doesn’t respond within 10 days of receiving your request, then you may redeem the property by paying the amount that they paid at auction during the foreclosure sale. If they do respond, you will need to reach an agreement with them on an appropriate amount to pay to redeem the home. If you cannot come to an agreement, then you may need to take the matter to court.

Step 2: Ejectment 

When the 10-day period to give up possession of the property passes, the new owner will likely file an ejectment action against you. 

This is a lawsuit filed in the Circuit Court of the county where you live.

Service

You will be served with a Summons and Complaint. It will list a Plaintiff (the person suing you for ejectment) and a Defendant (either your name alone, or yourself and those who live with you.)

Generally, you must be personally served with an ejectment lawsuit. This means the court papers must be:

Court papers cannot be handed to those who appear to be minors, or to anyone who does not live with you. 

Court papers can also be served by certified mail, but you or someone else named as a Defendant must sign the certified mail receipt. 

If the Plaintiff can’t serve you personally by reasonable means, they may attempt to serve you by publication; that is, by printing a notice in the newspaper.


In the event that the Plaintiff fails to serve you correctly, it may be worth discussing with a lawyer whether this would be helpful to your case.

Filing an answer

Once you’ve been served with an ejectment, assuming that the Plaintiff both filed the case and served you correctly, you will have 30 days to file an answer with the Circuit Court.

The answer must be delivered to the courthouse in writing. This link leads to a copy of the answer form; you can print it at your local public library, at a shipping store such as FedEx or UPS, or with the help of your religious community.

It’s best to be brief and direct when you write your answer. Simply stating “I deny everything and demand proof” will usually be enough to ensure you’re given a trial rather than a summary judgment, as described later on this page.

Your answer must include

  • Your name
  • The name of the person or company suing you
  • The court case number

The court case number is listed on the top right-hand corner of the court papers you were served, and usually looks something like “## – CV-202_-900_______.”

It’s a good idea to ask the clerk for a stamped copy of your answer to keep. 

You should also mail a copy to the Plaintiff’s lawyer.

Make sure the clerk has your most recent mailing address before you leave the courthouse, and that you check your mail regularly. All court notices, including court orders and hearing notices, will be mailed to you.

Discovery

The Plaintiff might send you what lawyers call discovery; that is, a set of questions you must answer, documents that you will need to provide, or other ways of establishing the facts of your case.

Discovery can take several forms.

You may receive Interrogatories (inter-ROG-a-torries).

These are questions which you are asked to formally answer. Give your written answers truthfully, to the best of your knowledge, and answer everything that is asked; however, be certain not to over-share any information that the interrogatories do not specifically ask about.

You may receive a Request for Production of Documents. This is a formal request that you show them copies of certain documents important to your case (such as the property deed or the mortgage agreement). You should send the Plaintiff’s lawyer a copy of any of the documents they ask for. Try to fill this request to the letter and in good faith; however, avoid sending anything that they did not specifically ask for.

Mail a polite letter with copies of those documents to the Plaintiff’s lawyer; then, file a Notice of Service of Discovery with the court on the date you mail them that answer. As the name might suggest, this officially tells the court that you’ve served (that is, handled) the Plaintiff’s request as asked.

The Plaintiff may ask to take your Deposition. During a deposition, you will give your sworn testimony—that is, your account of events, spoken under oath—in front of a court reporter. This usually happens out of court, often at a lawyer’s office.

Anything you say at the deposition can be used at trial. The Plaintiff’s lawyer will receive a transcript of everything said that day, and may bring up in court what you said under oath during your deposition. Answer the questions they ask as directly and honestly as you can; however, don’t volunteer information that they don’t ask about. 

If the Plaintiff and their lawyer choose to request a deposition, you’ll receive a Notice of Deposition by mail. This will include a planned time and place for the deposition to occur. If that occasion doesn’t work for you, then you may contact the Plaintiff’s lawyer to work out a better one.

If you can’t come to an agreement on when to meet, then you can file a motion with the court or a request to the judge to make the decision for you. 

After your deposition, you may also request a copy of the transcript. Since your deposition happens under oath, this can be useful for making sure you don’t mistake or contradict yourself during your trial; however, you’ll need to pay the court reporter for the copy.

Motion for Summary Judgment

Often in ejectments, the Plaintiff will file a Motion for Summary Judgment. In this written motion, the Plaintiff will claim that there are no facts in dispute, and the court should rule in their favor without a trial.
 
During an ejectment the Plaintiff will often file a Motion for Summary Judgment. In it, they will claim that none of the facts of the care are in dispute, and that the court should rule in their favor without a trial. Since you’ve chosen to fight against your ejectment, you don’t want this—and so you should respond to their request by giving facts of the case which you do dispute.

Make your response in writing. Include an affidavit (that is, a sworn statement) in which you state that you dispute the foreclosure, likely based on one of the possible defenses described below.

It will be your responsibility to prove that there are facts in dispute. Unfortunately, being unable to afford the home or needing more time to move will not serve as legal defenses. 

The court will schedule and notify you of a hearing on the Motion for Summary Judgment. You must file your written response with the courthouse at least 2 days before this date.

On the date of the hearing, if you submitted a written answer, you will be given a chance to explain it further before the judge.

Their honor will then make a decision. Some will inform you on the same day, while others will make a decision at a later time and then inform you via a court order in the mail. Be certain to check your mailbox.

If the court grants the Plaintiff’s request for a summary judgment, the case is over. The plaintiff wins outright, and they will be able to remove you from the home by the terms that they set. If you want to appeal this decision, you must do so now. This process is described further down on this page. 

If the court denies the summary judgment, then a trial date will be set. Be certain to check your mailbox for this, as you will be notified by post.

General Defenses to Foreclosure

In order to challenge your ejectment, you typically need to identify procedural defects—that is, ways in which the Plaintiff and their lawyer failed to follow proper procedure in pursuing an ejectment against you.

  • Both parties must follow all the terms of the mortgage.
    • Your mortgage will often explicitly state what notices the lender must give you and what procedure they must follow in order to eject you from your home.
    • Closely examine your mortgage contract to see if those notices were sent and were correct, and if those procedures were followed. Make note of any ways in which they weren’t.
  • The Plaintiff must actually have the right to eject you from the property.
    • If the Plaintiff isn’t the person or entity that bought the property at the foreclosure sale, then who are they? 
    • Do the terms of the mortgage give them, the person named as the Plaintiff, the right to sue you for ejectment? 
  • The notice about the foreclosure must be run for the correct number of weeks.
    • If this isn’t explicitly stated in the mortgage, then it’s typically 3 weeks. 
    • If they didn’t run it for at least this long, then they have not followed procedure.
  • The foreclosure notice must contain the time, place, and terms of the sale, and a description of the property to be sold.
    • If the notice lacked any of these details, even for one week of the notice period, then you may be able to argue that the Plaintiff did not follow procedure.
  • The foreclosure sale MUST be in the county that the property is located in.
  • Separate parcels of land should be offered separately for sale.
    • If for instance you own three lots financed by a single mortgage provider, the lender must still list them each separately for sale.
    • If they attempt to sell the properties as a single unit, then you may be able to argue they did not follow proper procedure.
  • The foreclosure sale must be conducted in a commercially reasonable manner.
    • If the lender engages in flagrantly unfair business practices during the sale of the property, then it may be possible to argue that they “did not sell the property in a commercially reasonable manner.”
    • This is more or less likely to help depending on what unfair business practices you name, and how provable those claims are.

Trial

At the trial, you have an opportunity to bring any witnesses or other evidence you may have. Evidence can include:

  • Your mortgage
  • Any letters or documents sent to you by the mortgage company
  • Any other relevant documents

Your trial is your one day in court and is your only opportunity to present your evidence to the judge. Make sure you bring everything you want the court to consider. 

The Plaintiff gets to go first. They will present their own witnesses and evidence. You will have the opportunity to cross-examine any witnesses they present—that is, to ask them questions in a polite and formal way. 

If you choose to testify, the Plaintiff’s lawyer will get to ask you questions. 

If you have any witnesses, then the Plaintiff will be allowed to ask them questions just as you were allowed to ask their witnesses questions. You will get to ask questions from your witnesses first, and then the Plaintiff’s lawyer will do so.

After the trial, judge will make a decision. They may make it and notify you on the same day, or they may notify you by mail. Be sure to confirm with the courthouse clerk that your mailing address on file is correct, and to check your mailbox daily.

Appeal

You generally have 42 days to appeal any judgment in Circuit Court. This is true if the court enters Summary Judgment against you (see above), or if the judge rules against you after trial. 

You have 30 days to file a motion asking the court to reconsider its decision. 

An appeal from Circuit Court is made to the Court of Civil Appeals of Alabama. 

You will need:

When you appeal your case to the Court of Civil Appeals, you will need to submit a formal legal brief and argument. In this case, you will almost certainly need the assistance of a lawyer.

Writ of Execution/Possession

After a judgment is entered for the case, there’s an automatic stay of 30 days (unless otherwise stated).

Once this 30 days is complete, the Plaintiff will ask the Court for a Writ of Possession or a Writ of Execution. This document will be sent to the sheriff’s department, who will then remove you from the home.

How long it takes the sheriff’s department to respond varies by county, but can happen at any time.

Settlement

Throughout the foreclosure and ejectment process you may choose to simply settle your case—to come to an agreement between you without going to trial. Some options to discuss with the plaintiff, if you would like to settle, include:

  • Cash for Keys
    • The plaintiff may pay you a sum of cash to avoid continuing the case further.
  • Reinstatement
    • While uncommon, it may be within your power to pay off the mortgage—especially if you are able to find alternative financing with which to do so.
  • Voluntary Departure
    • If it seems unlikely that you will be able to contest the claims made by the plaintiff, and if they seem intent on carrying the case to trial, then you may simply agree to leave the property.

Bankruptcy

You can file a bankruptcy after you receive an ejectment lawsuit. 

When you file bankruptcy, an automatic stay goes into effect. It will automatically stop certain lawsuits against you from going forward, including ejectment from your home. 

You could attempt to pay off your mortgage debt in a Chapter 13 bankruptcy. By the time the Plaintiff pursues you for ejectment, they will most likely file a Motion for Relief from Stay which will let them go forwards with their case; however, forcing them to file it and wait for the court to process it could buy you time. 

In Closing

If you are served with an ejectment lawsuit, the most important things to remember are:

  1. Make sure the court has your mailing address.
  2. Attend all court dates. Do not ignore court date notices and orders.
  3. You will have time to move, but not much. Try to work within the deadlines imposed by the court and consider your legal options. You can talk with Plaintiff’s lawyer, keeping in mind the information included in this plan.

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