Should I file an answer in my New Jersey foreclosure case?

Nov 6, 2015 | Uncategorized

It is extremely important that you file an answer within the time frame set out by the New Jersey court rules.

Clients ask me this question all the time. It is extremely important that you file an answer within the time frame set out by the New Jersey court rules. When you are served with the summons and complaint, the clock starts ticking and you have 35 days to file an answer with the Superior Court. 

If you fail to file an answer, the bank attorneys will file for default in which case they will proceed with the appropriate procedure to obtain a final judgment of foreclosure. Once a final judgement of foreclosure is obtained, the court will issue a writ upon which the sheriff of the county in which your house is located will put your property up for sale. This timeline from complaint to sale is heavily abbreviated if you fail to file an answer. 

So, why should I file the answer?

Within an answer the court rules require you to specifically admit or deny each allegation of the foreclosure complaint. You must do so with specificity or risk having your answer struck by motion of the plaintiff (lending institution). It is critical that you do not admit to anything that you are uncertain of. Rather, you may plead in a manner that allows you to claim insufficient information when you are missing certain documents, such as the note and the mortgage. This allows your attorney the opportunity to enter the litigation process. In NJ foreclosure cases, discovery is usually set out at a case management conference by the court or a case management order within a certain time frame after the answer if filed.

This practice does vary by county as certain judges handle their calendar differently. Issuing discovery request is important to your defense. Specific interrogatories crafted to the facts of your case must be issued coupled with requests for admissions. Although not necessary in all cases, it is helpful when answers to these requests are obtained. Your attorney should also issue a request for documents which includes a copy of your original note, mortgage, assignments, modifications and other relevant papers. 

The answer usually includes affirmative defenses. If you were to imagine a castle, your response to the individual allegations are your walls, your affirmative defenses act as your catapult. Depending on the specific facts of your case, affirmative defenses should be put forth otherwise you risk waving them. 

Finally, the answer can also include counterclaims. Using the same analogy, counterclaims are a direct attack on opposing castle. Here you set forth any claims you may have against the bank; which can result in monetary awards or equitable relief. 

Litigation is an extremely complicated process in which you need competent counsel.  So again, should you ask me if you should file an answer in your New Jersey foreclosure case, I would say yes, but of course, this answer can only come as legal advice if I know the specific facts of your case. There may be alternative strategies that we can explore together.

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