In New Mexico your mortgage company needs to go to District Court to take back your house. Your mortgage is not “in foreclosure” until the bank or mortgage company files a lawsuit against you.  You will be served a Summons and Complaint for Foreclosure.  

Your Answer must be filed with the District Court Clerk in the District Court where the Summons was issued within  30 days of service of the Summons and Complaint, or you will lose by default.   If you fail to file a timely Answer, your house may be auctioned off on the courthouse steps in three  months (or less) after you receive the Summons.

You must file an Answer on time. Many people mistakenly believe that they do not have to file an Answer if they are talking on the phone with their mortgage company, working out a modification deal. Sometimes the person on the phone even tells them not to worry about the lawsuit. This is a huge mistake! File the Answer.

If you do not file an answer you will automatically lose by default.

Filing an Answer may allow you continue to live in your house for many more months or possibly years, even when you are not paying your mortgage.  

There are legal and technical defenses to foreclosure suits.  The Supreme Court of New Mexico recently issued an opinion in favor of the homeowners in Bank of New York v. Romero. The bank was not entitled to foreclose because it failed to prove that it owned the note on the date the suit was filed.  This is one example of a winning defense.  (This defense may not apply to the circumstances of your case.)

An attorney drafted Answer will preserve your affirmative defenses for litigation.

After you file a timely Answer, you can request that the Court schedule mediation.  The Court may schedule mediation even if you do not request it.  Mediation sometimes provides an opportunity for you to work out a new deal with your mortgage company. Strategic discovery requests and/or motions made prior to mediation can provide extra incentive for your mortgage company to mediate in good faith.

Chapter 7 bankruptcy will only halt foreclosure suits for the duration of the bankruptcy case (about 3 ½ months), or less if the Bankruptcy Judge issues an order to lift the automatic stay.  

The filing of a bankruptcy case can be timed so to postpone trial in a foreclosure case or postpone a house auction date.  

Chapter 7 bankruptcy will eliminate a deficiency judgment from a foreclosure lawsuit.

Before foreclosure, a Chapter 13 bankruptcy can provide provide a 3-5 year payment plan for you to catch up on your missed mortgage payments. You need to file your bankruptcy before your house is auctioned off on the courthouse steps.

Information provided herein is general in nature and NOT intended as legal advise for your case.