Glossary of Terms: Foreclosures

Answer: The Answer is a document filed by the borrower, or any other party defendant, in response to the Complaint. If the borrower has any defenses to the foreclosure action, such as “I do not owe the money because I sold the property,” they should be documented in the Answer.

Automatic Stay: Protection, provided by the Bankruptcy Code to debtors, that prohibits collection and enforcement actions against the debtor without permission of the Bankruptcy Court. The Court will allow the foreclosure to proceed if it can be demonstrated to the Court that the borrower has little or no equity in the property and the lender’s interest in the property is not adequately protected.

Complaint: The Complaint is the document that accompanies the Summons which documents the claim of a default on the mortgage. It identifies the parties, the amount owed, date of the last payment made and demonstrates the borrower's liability.

Judgment of Foreclosure and Sale: The Judgment of Foreclosure and Sale sets forth the judgment amount due plaintiff, the place where the sale will take place and orders the scheduling of the foreclosure sale.

Lis Pendens: A document recorded in the real property records of the County Clerk that advises the public that the real property affected is involved in litigation.

Notice of Sale: Legal notice setting forth the property address and date, time and place of the foreclosure sale. The Notice of Sale is published and posted prior to the scheduled foreclosure sale date.

Order of Reference: The Order of Reference is the document by which the Court appoints a Referee to administer the foreclosure process. The lender’s attorney makes a motion to the Court asking for an Order of Reference to be issued.

Referee: An attorney appointed by the courts to act as an impartial party to review the lender’s calculations for accuracy and conduct the sale of the property.

Referee’s Deed: A deed prepared for execution by the Referee to transfer the foreclosed property from one party to another.

Referee’s Oath and Report of Amount Due: The Referee’s Oath and Report of Amount Due is submitted to the Referee along with a supporting Affidavit of Debt signed by a bank officer showing the unpaid principal balance, interest, fees and advances due on the loan. By signing the Oath, the Referee agrees to fairly verify the amount owed and determine how the sale should be conducted. The Report of Amount Due provides information to the Court to support the issuance of the Judgment of Foreclosure and Sale.

Referee’s Report of Sale: The Referee’s Report of Sale (“RROS”) shows the results and accounting of the foreclosure action, whether the bank or a third party purchased the property and whether the sale resulted in a surplus or deficiency.

Search: Sometimes referred to as the Stub Search, Foreclosure Certificate or Last Owner Search, this document reveals the identity of the defendants who must be named in the foreclosure action. A Stub Search shows the liens and encumbrances filed since the mortgagors purchased the property, which is just a portion of the title history. A Search also provides the status of real property taxes.

Summary Judgment: If the borrower raises a defense to the action (submits an Answer), the lender rebuts it through a Summary Judgment motion to the Court. The motion includes evidence to invalidate the borrower’s defense. The borrower has the right to respond to this motion. Service of an Answer necessitating a motion for Summary Judgment will delay the action.

Summons: A document served on the defendants, notifying them of the lawsuit, the time in which they have to answer and the court in which the action will take place.