The complaint alleges one or more defaults occurred under the terms of the mortgage and promissory note. The goal of the complaint is to obtain a Final Judgment that will allow the court to legally transfer title to the property from the current owner to a new owner.
This is typically done through a private process server but may be accomplished through the sheriff. If the borrowers cannot be located after a diligent search, and attempts to serve them personally have failed, the plaintiff is allowed to serve them by publication of a notice in a local newspaper.
Defendant files an Answer (or asks judge by a motion for a brief extension of time to answer) and/or files a Motion to Dismiss stating reasons why the plaintiff’s complaint is defective.
If a Motion to Dismiss is filed, a hearing may be scheduled by either party at which time the judge or magistrate will rule on the motion. The judge or magistrate will enter a written order confirming his or her ruling. You may request hearings for your own motions. Judges may decide some motions without a hearing.
If the Motion to Dismiss is denied and an Answer has not yet been filed, the judge will order the Answer to be filed within a certain number of days, typically 10 or 20 days. If the defendant fails to file the Answer within the time set by the judge, defenses could be stricken and a default entered against the defendant. This could clear the way for the plaintiff to get a final judgment due to the defendant’s failure to comply with a court order. If the Motion to Dismiss is granted, plaintiff may be allowed to file an amended complaint, which can then be challenged by another Motion to Dismiss.
20 days after the Complaint is served on all defendants (if no answer is filed), or 20 days after the Answer has been filed, the case is ready to be set for trial. Either party may request a trial date or the Court may set one on its own.
Parties have a reasonable time before trial to request disclosure of information and documents from their opponent. However, this has to be done in accordance with the rules of civil procedure. Examples of discovery devices commonly used are: Requests for Admissions (written questions the answers to which will bind the responding party), Interrogatories (written questions to be answered under oath), and depositions (witness testimony taken under oath before a court reporter which is recorded in a booklet called a transcript.) The rules of civil procedure set deadlines for parties to comply with discovery requests. Failure to timely comply can result in sanctions against the offending party, including attorney fees and cost. In extreme cases of non-compliance the judge may strike a defendant’s answer and defenses, enter defaults against the defendant and, the case of a plaintiff, dismiss the complaint.
Plaintiffs usually attempt to resolve the case by means of a motion for summary judgment. If the summary judgment is granted, the court will enter a Final Judgment. The circuit’s standard form of foreclosure judgment can be viewed here. The judgment will include the total amount owed and a date for the clerk to sell the property. If summary judgment is not granted, the plaintiff can try again to resolve the case by filing another summary judgment, or the case can be set for a trial without a summary judgment. See WHAT IS A SUMMARY JUDGMENT?
If ready for trial, a date will be scheduled by the judge. The judge may also order the parties to appear at pretrial conferences. If defendant fails to appear at a mandatory hearing or trial, the plaintiff may request a final judgment. For this reason, careful attention should be paid to reviewing orders containing hearing dates when received from the judge. If plaintiff fails to appear, the case may be dismissed. At trial plaintiff will be required to prove the case by witnesses and other evidence. Defendants also will have to prove their defenses at the same time.
If the plaintiff wins at trial or after a summary judgment hearing, the court will enter a Final Judgment. The Final Judgment will state the total amount owed and set the date for the property to be sold by the clerk.
After the clerk’s sale, defendant has 10 days to “redeem” the property. This means if the defendant can come up with the total money owed as stated in the final judgment within the 10 days, the sale can be reversed, the judgment vacated and the case dismissed. The money is paid to the clerk, not the plaintiff.
If no redemption occurs, the clerk will issue and record a new title transferring the property from the defendant owner to whoever was the successful bidder at the clerk’s sale.
Once the clerk issues the new title, the new owner is entitled to request a Writ of Possession, which is a paper directing the sheriff to remove all persons on the property and put the new owner in possession.
A sheriff’s deputy will give notice to occupants that the Writ of Possession requires them to leave, giving them a short time to remove their personal possessions. Thereafter, a deputy will visit the property. If the occupants have not vacated the premises, they will be ordered to leave immediately.