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There are 5 types of court forms that are used more than any others by homeowners in foreclosure: 1) Pauper Petition 2) Appearance 3) Answer to the Foreclosure Complaint, 4) Notion to Stay Eviction and 5)Repayment Plan. Also included is 6) Notion for Turnover of Surplus.
- Paupers Petition
A Paupers Petition is formally known as a “Application to Sue or Defend as a Poor Person.” If you are granted a Paupers Petition, you will be able to file documents with the Clerk of the Court without charge. Whether you qualify for a Paupers Petition depends on the standards and practice in the County where you live. To find out if you qualify, you must go to the county courthouse and make an application with the judge who handles foreclosure cases. The Cook County form Paupers Petition is included as Appendix “A.”.
- Appearance
Filing a written Appearance is the formal way of becoming active in the lawsuit. You have 30 days from the date you received the foreclosure complaint, to file your written appearance with the court. If you qualify for a Paupers Petition, you will be able to file your Appearance without cost. The amount of the cost varies by county. If you file a written Appearance, your mortgage company’s lawyer must notify you of all court hearings. Nevertheless, you will probably be notified of these hearings even if you do not file an Appearance. The Cook County Appearance form is included as Appendix "B.”
There are two potential disadvantages to filing your Appearance. First, you voluntarily submit to the jurisdiction of the court. If you were not properly served with the complaint, by filing your Appearance, you waive any argument you may have regarding this. Second, by filing your Appearance and submitting yourself to the jurisdiction of the court you become liable for a personal deficiency if one results from a foreclosure sale As always, it is best to get advice before you act.
- Answer to Foreclosure Complaint
The "Answer" is your written response to your lender's foreclosure complaint. You cannot file your answer unless you have first filed your Appearance. The Answer is not your opportunity to tell your side of the story. Rather, you should respond to the paragraphs in the complaint in one of three ways: l)Admit 2) Deny, or 3) Insufficient information. To file your Answer, write the name of your lender followed by your name on the top left of the Answer form and the case number to the right of it. Then list the words "Admit” "Deny"
and "Insufficient Information” down the page. Next to each word write the number of the paragraph from the foreclosure complaint that applies to that word. A sample Answer is included as Appendix “C".
- Motion to Stay Eviction
By law, you must move within 30 days alter the foreclosure sale is confirmed in court by the judge. If you need more time, you should appear in court when the sale is confirmed and ask the judge for more time. Be realistic, however. The judge may only grant you a total of 45 to 60 days to leave, depending on your individual circumstances. Be prepared to tell the judge the number of occupants in the house and any medical difficulties or other special facts.
If you need more time to move after the 30 days has expired, you must appear in court to request more time. You arrange this by filing a motion with the court and sending the mortgage company's attorney a Notice of Motion with the date you will be in court. Motion forms and Notice of Motion forms are available at the courthouse. A sample Motion to Stay Eviction and Notice of Motion is included as Appendix “D.”.
- Motion for Turnover of Surplus
A third party might buy your house at the foreclosure sale by paying more than the bank is owed. If this happens, the overage is called a "surplus". You can appear in court and ask the judge to give you the overage. Usually, you must be the homeowner or the person who took out the mortgage. In all cases you must be a party to the foreclosure or have a good reason to "intervene" in the case. If the judge enters an order for you to receive the surplus, take a certified copy of the order to the company that held the sale in order to receive your check.
You arrange the court hearing by filing a motion with the court and sending all parties to the case a Notice of Motion with the date you will be in court. A sample Motion for Turnover of Surplus and Notice of Motion is included as Appendix "E".
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