If you live in one of the 25 or so states in which lenders generally foreclose by filing a lawsuit, you have been served with a Summons and Complaint. If you are resigned to the foreclosure and want to put your time and energy into moving on with your life, the answer to the question, "Do I have to attend the court hearing?" is a resounding “no.” If you want to fight the foreclosure or just slow it down, however, you'll probably want to go.
Although state law spells out the steps a lender has to take in either a judicial or non-judicial foreclosure, the fundamental process for a judicial foreclosure is straightforward. The lender files a complaint against you in court and serves you with the complaint. If you respond to the complaint, you are granted a hearing. If you don't, the court may make an expedited decision without your input. In either case, if the court grants the foreclosure, the house is taken away from you. In most states this happens through a foreclosure auction. In a few states, in cases in which the outstanding mortgage balance is clearly more than the house is worth, the lender just takes possession.
Advantages of the Process
In a non-judicial foreclosure process, the lender sends a series of notices and then has a trustee sell your house. If you want to stop your lender, you have to go to court and ask for an injunction. The burden will be entirely yours to prove the lender has done something wrong. In a judicial foreclosure, you are entitled to a hearing, and, in essence, the shoe is on the other foot. The lender has to prove its case.
Ramifications of Not Going
There is no difference in end result between a foreclosure in which you show up in court and one in which you don't. There is no penalty for not showing up, other than a virtual guarantee you will lose the case. If you don't want to fight and want the process to conclude as quickly as possible, you're probably better off not going.
Benefits of Going
On the other hand, if you want to do everything you can to either slow or stop the foreclosure, going to court is your best bet. You must start by filing an answer to the complaint. This guarantees you a hearing and slows the foreclosure schedule to accommodate one. According to Nolo.com, a number of defenses to a foreclosure can be brought up in court. You will likely need the help of legal aid or an attorney if you want to fight. If your goal is simply to slow the process in order to make one last stab at a loan modification, finish out a school year in the same district, or save money to afford a new place, you can probably do it on your own. In this case, file an answer, and when you get to court, ask the judge for more time. Be specific in what you ask for and give him your reasons.
Mary Gallagher runs Mary Gallagher Planning (mgaplanning.com), an urban planning and consulting business in San Francisco. She is the former assistant planning director for San Francisco and planning director for San Mateo. Gallagher has been writing about real estate, development and land use for numerous websites since 1995. She holds a master's degree in historic preservation planning from Cornell University.