A non-jury trial is a trial in which the judge alone decides the outcome. When it comes to foreclosure trials, most are non-jury.
Several factors play into whether or not you can get a jury in your foreclosure case.
- Check whether your states allow juries in foreclosure cases. In most states, a foreclosure is considered “equitable” relief,” meaning a remedy granted only at the court’s discretion. The lender must convince the judge to grant the foreclosure. However, if the lender is acting unethically, a successful equitable defense can halt the proceedings.
- If your state does allow a jury trial, you will need to determine if your foreclosure is nonjudicial or judicial. In a nonjudicial foreclosure, the lender does not have to go to court in order to foreclose on your home, and it’s often a much faster process than judicial foreclosures that go through the courts. The lender can choose the foreclosure type depending on the options afforded by state law where the property is located as well as the circumstances of the foreclosure.
- Finally, even if you do have the right to a jury trial under your state law, check your loan documents because you may have signed away this right by agreeing to a “jury trial waiver” when you took out your loan.
In general, it is not advisable to defend yourself in a foreclosure case. Consult with a foreclosure attorney in your state to find out what your options are, whether you signed away your rights to a juried trial and if that’s the case, how to get a jury to hear the case, and how to demand a jury before the case goes to court. Timely and accurate filing of documents is of the essence, and your options may be limited by local regulations, so it’s in your best interest to work with a foreclosure attorney.
You may be able to file your own lawsuit to get the foreclosure into court, if you believe that this will help you. This does not, however, guarantee you the right to a juried trial, only that the court is now involved.
Assuming that the lender’s attorneys have done everything correctly and in the absence of a jury, the judge will grant judgement, and the auction date will be placed for 30 days out. It may be possible for your attorney to postpone the trial or move to cancel it, giving you a 120-day auction extension in order to work out a modification or short-sale the property. If you’re facing a trial date and need more time to prepare a defense, close a short sale, obtain a loan modification or leave the property, your best option may be bankruptcy. Filing for bankruptcy (Chapter 7 or 13) will cancel the foreclosure trial, which may give you enough time to explore alternative options.
Having an attorney does not guarantee a better outcome, but not having one almost guarantees judgement against you. Work with an attorney who finds solutions, not just delays.