Brief Overview and Guide to Foreclosure Defense Litigation in New Jersey at the Superior Court
Compared to other jurisdictions, particularly New York, New Jersey Judges set hard schedules for foreclosure litigation at the Superior Court. There are however multiple ways litigation can be used to ensure you have the information and time you need to pursue loss mitigation through loan modifications, short sales, or bankruptcy.
To start, New Jersey requires that 30 days prior to the summons and complaint, the bank must send you a notice of intent to foreclose. This is required. However, recent case law under U.S. Bank National v. Guillaume outline the remedy for a lender failing to meet these requirements. Rather than strictly dismiss the case as was required under “Laks” the Supreme Court of New Jersey allows Superior Court Judges to dismiss the action or order a corrected notice. Furthermore, failure to provide notice is not a meritorious defense to a foreclosure action.
After notice is received (or not), a summons and complaint should be served upon the borrower. In New Jersey, you have 35 days to file an answer with a $175 filing fee. In this answer, you must not only answer the allegations put within the complaint, but assert your affirmative defenses and counter claims. Failure to do this may result in you waiving defenses and claims against the borrower. This can result in significant consequences that can be extremely detrimental to borrowers.
Once the borrower institutes an answer, judges may will schedule what is called a Case Management Conferences in order to set timelines for discovery, pre-trial and trial. County to County, Judge to Judge, these conferences are held differently and require different preparation. For instance, certain Judges allow for these conferences to be held with the Law Clerks and only a brief discussion will be held in regards to discovery and trial schedule. Other Judges will hold telephonic conferences to determine if there are any issues that require particular attention. The most difficult preparation is required for those Courts that require a thorough examination of defenses before the Court. Some Judges forgo the case management conference altogether and issue case management orders without input from foreclosure lawyers.
Returning to the service of the summons and complaint, once served upon the borrower, the borrower must within 60 days apply for mediation if they seek to use the free resource offered by the Court system. This is highly recommended as it brings both the borrower and lender to the table in front of a court appointed mediator. Bad faith by either side can result in motions being filed in front of a Judge for equitable relief.
Stay tuned for Part 2 of the Overview Guide to Foreclosure Litigation in New Jersey discussing discovery, loss mitigation (loan modifications/short sales) and summary judgement motions brought to you by the foreclosure defense lawyers at Patel & Soltis, LLC, a New Jersey and New York based Foreclosure and Immigration Law Firm.
This Overview and Guide is not legal advice and should not be relied upon. You should seek the assistance of an attorney if you are a borrower or lender and seek to institute or defend foreclosure actions in New Jersey.
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