Another Public Service Announcement: Answer the Complaint
The complaint in Ohio has a Summons attached to the front of it and both the Summons and Complaint are served upon the Defendant to begin the civil action. The Ohio Supreme Court provides the standard form for the Summons to be used by the Ohio Courts of Common Pleas. The Summons contains the following language:
You have been named a defendant in aforeclosure complaint. You are hereby summoned and required to do the following:
1. Within 28 days after service of this summons you must serve (deliver or mail) a copy of your Answer or your Motion for Extension of Time to Answer or Otherwise Plead upon the Plaintiff(s)' Attorney. If the Plaintiff does not have an attorney, you must serve the Answer or Motion for Extension of Time to Answer or Otherwise Plead on the Plaintiff. The 28 days is mandatory. It includes the date you received this summons and excludes the date that you serve the Plaintiff's attorney or the Plaintiff.
2. You must also file your originalAnswer or your original Motion for Extension of Time to Answer or OtherwisePlead with the Clerk of Court's Office within 3 days after you serve the Plaintiff(s)' attorney or Plaintiff, as appropriate.
The standard form also provides the following information:
We urge you to seek legal counsel. You may contact the Save the Dream hotline by calling 1-888-404-4674. Additional information and resources can be found at http://www.savethedream.ohio.gov/.
Most homeowners are not trained in the law. To the Courts and Attorneys the above instructions are very simple direct and easy to follow. To a homeowner who has been dreading this day for quite some time, the fear and panic makes it difficult to read. Once the Homeowners calms down, the above instructions are still very difficult to understand. The Homeowner does not understand, even though it clearly says so, that the 28 days begins to run when the summons is received by the Homeowner. Instead, the Homeowner will count 28 days from the date typed on the summons and determine that either the time has passed or there is very little time to react.
Even though two things are required, the Homeowner will do the suggested optional item set forth above. The Homeowner will contact Save the Dream. The telephone number is listed right on the summons, certainly they know more about the process than the Homowner. Contacting Save the Dream does not fulfill either of the above requirements. I do not mean to disparage Save the Dream. All I am saying at this point is that the Homeowner may feel some relief; a counselor is available to help, but the complaint remains unanswered. The Homeowner is still in default.
Other Homeowners will find the name and telephone number of Plaintiff's attorney and call the attorney. Other Homeowners will contact the bank directly. These Homeowners will again feel some relief; they will receive an application for assistance. The Homeowners are talking to individuals; the individuals actually seem helpful and the Homeowners are given something that they can do and easily understand; answer questions about their finances; explain their financial predicament; provide pay-stubs and tax returns. The process is almost refreshing at first. The Homeowner has been wanting to discuss these impossible issues with someone. However, the Homeowner is still in default; an answer has not been filed with the Court.
The loan modification process, whether through a governmental agency, the bank, or the Plaintiif's attorney takes much longer than expected. The Homeowner seems to become emotionally invested to continuing with the loan modification process. Despite how many times the paperwork is insufficient; the paperwork is lost; the paperwork needs updated, the Homeowner continues to turn in the paperwork and continues to contact the Bank, the agency or the attorney.
The loan modification process also makes the Homeowner ignore the foreclosure complaint. Some homeowners probably ignore the legal process purposely. It's too scarey or complicated to think about. Many other homeowners truly believe that they are participating in the foreclosure litigation; after all they contacted save the dream, they called the bank, they wrote to the attorney. Another group of homeowners have been increasing in numbers; Homeowners who understand that they must file an answer, ask the people working with the homeowner on the loan modification if they must still file an answer to the complaint, and the Homeowners are mislead. Some homeowners are outright lied to about the need to file answer. Other Homeowners are told that it really is not needed and that a loan modification will resolve everything. Why spend money on an attorney when the homeowner needs to demonstrate his ability to pay his mortgage or come up with a downpayment for the loan modification.
Homeowners fall into the trap of not filing an answer to the complaint and rely upon the loan modification process to resolve the matter. However, the Bank eventually files a motion for default, and the Court issues a default judgment and a Decree in Foreclosure.
The bank files a praecipe for order sale and the backlog of cases in many counties results in a number of many months before the order of sale is sent to the Sheriff. Sometime between the default judgment and the advertisment for the Sheriff's Sale, the Homeowner is either denied a loan modification or presented a loan modification which they can not possibly afford. Now what to do. It is at this point many Homeowners contact an attorney.
Unfortunately, most attorneys tell the homeowner there is nothing that can be done. Its too late.
While there are still many things that can be done at this point (a motion for relief from judgment; a motion for stay of execution), this post is already too long and written in a stream of conscience format.
The Homeowner who has received a summons and complaint should realize that many attorneys offer free consultations. Homeowners should also realize that attorneys defending foreclosures offer reduced fees and payment plan. Contact an attorney.
If the Homeowner chooses to follow some other path, the Homeowner must prepare an answer to the compalint. There are many sample answers available. An answer should set forth the Caption. The first three inches of the complaint where it identifies the court; the name of the plaintiff vs. the name of the defendant; the case number. It should then plainly state ANSWER. The answer must then admit or deny each numbered paragraph of the complaint. After the answer is prepared, the Homeowner must mail a copy to the bank's attorney; file the original with the Court and then have a copy stamped with the filing date for your records.
You can then safely contact whoever you want to attempt to modify your loan. When calling you should record the date and time of your call; the number that you called, the individuals full name who you spoke to, along with any identification number provided. You should keep careful, neat and organized notes of each of your telephone converstaions. You should keep all of your notes in a single designated notebook. The length of time involved will surpass any of your expectations. The homeowner should also keep a copy of any document that you complete and send to anyone in the loan modification process. You should also track through a delivery confirmation, fax transmittal sheet, or fed Express tarcking information the receipt of the loan application.
The take away from all this should be: Answer the Complaint. No matter what anyone else tells you, the Homeowner nust answer the complaint.