Once a foreclosure case has gone to trial, there are really only three possibilities left. Either the case will be decided in favor of the lender and the foreclosure allowed to continue, the case will be dismissed and the lender forced to begin the foreclosure all over again or not allowed to do so, or one party or the other will attempt to file an appeal with a higher court.
Mortgage companies will often not be able to win a foreclosure lawsuit based on the merits of the case due to the near impossibility of following all of the rules and laws that govern mortgage lending. And if homeowners press hard enough, the entire complaint against them will typically fall apart. So the bank’s attorneys will most likely have to rely upon mistakes made by the borrowers themselves in following the court rules.
When this happens, corrupt judges and corrupt attorneys can work together to force homeowners defending themselves out of the court system and justify it with confusing legal language or one-sided rationalizations. Borrowers who do not have years of legal training from a state-approved law school will find it difficult to convey their messages and will often be ignored or marginalized while the court and attorneys work against them.
But in some lawsuits, the bank may just have made so many egregious errors that it is impossible not to award judgment to the homeowners. In such cases, it is important for the borrowers to determine if the complaint has been thrown out with or without prejudice, because this difference will determine if the bank is able to begin the lawsuit again or if it is barred from beginning another lawsuit to force foreclosure of the house.
A dismissal without prejudice of the bank’s lawsuit means that the lender can re-file the case once it has fixed the errors in the original case. If the case was dismissed due to the bank not following state pre-foreclosure notice procedures, the lender may be able to follow them correctly and throw the house back into foreclosure. But when cases are filed with prejudice, the lender may not bring the case back into that court.
If either party believes that the court made serious errors in deciding the case or allowed for gross violations of rules or law, it may be worth filing an appeal. Of course, if the bank loses its case, it will most likely appeal because it does not want to lose all of the money it has already put into the lawsuit and it has more to gain from doing whatever possible to take the house.
But homeowners deciding to appeal face a more difficult choice. On the one hand, if all they were doing was buying time and have found a solution to foreclosure, it may not be worth the expense and trouble of appealing. At this point, moving on with their lives may be best if they have put up a defense and simply lost to the bank, especially if winning the case was not the primary purpose.
On the other hand, if homeowners are aware of violations of the rules in favor of the bank and wish to drag out the foreclosure process even longer, filing an appeal may be the way to go. Appeals must be filed in strict accordance with the Appellate Court, so more rules of procedure will have to be printed out and followed. But this process can take additional years and homeowners can request a restraining order against the bank from taking any other foreclosure actions until the case has been reviewed.
If a foreclosure case actually makes it all the way through the legal process and goes to a trial and is decided upon by a judge or jury, homeowners can rest assure that they have done nearly everything in their power to stop foreclosure and drag the process out for as long as possible. It is at this point that they will have to decide where to go next, either to appeal or not, depending on the outcome of the lawsuit.
Defending a Foreclosure
Step 1: Figure Out What You Want
Step 2: Play By The Rules
Step 3: Get More Time
Step 4: Research Your Options
Step 5: Who Owns the Loan and TILA
Step 6: Have the Lawsuit Dismissed
Step 7: Answer the Complaint
Step 8: The Discovery Process
Step 9: Summary Judgment
Step 10: Go to Trial
Step 11: Lose, Win, or Appeal