Homeowners in foreclosure will often miss the initial hearing date because they are unfamiliar with the legal process and simply do not understand how foreclosure will work in the court system. Obviously, this lack of understanding itself may be one very important reason to attend the hearing, as the court can not enter any judgment unless the homeowner defendants are aware of and understand the nature of the charges against them. In any event, though, it will be worthwhile for foreclosure victims to gain a broad understanding of the foreclosure process, as well as become familiar with some of the more common terms that are used by the courts, either in regards to the process of taking the home or filing bankruptcy to stop foreclosure, two related topics.

Breach of contract is the essential claim made in the foreclosure lawsuit, when the bank complains to the court that the homeowners have failed to pay their mortgage as agreed. There are several elements of a breach of contract case that must be proven in order for the bank to win its case. These include proving a legally binding contract exists between the lender and owners, the lender performed their part of the contract as agreed, the homeowners failed to perform, and the lender has suffered actual damages as a result. If the bank can not prove every one of these, they can not win the lawsuit.

A complaint is the term given to the document that begins the lawsuit by laying out the specific claims being made by the lender and the facts of the situation. It is the first legal pleading made by the plaintiff in the case. The complaint is filed in the court clerks office and a copy must be sent to the homeowners, to inform them of the lawsuit. Another term for a complaint is a petition, and either word may be used to describe the same document, depending on the county and court where the lawsuit is filed.

The docket is an extremely useful document that lists all of the documents filed to date in a particular case and a chain of proceedings that have occurred. Courts are more frequently offering online dockets to the public, who can research the chronological summaries of any particular case without having to visit the clerk and search through court records. The docket is a useful summary for homeowners attempting to put together a defense against foreclosure, due to the information being easily summarized in order of date. It is also the formal record of the proceedings in a court case.

A nondischargeable debt is a term often used in bankruptcy cases, when describing which debts can not be wiped out by filing a Chapter 7. Any debt that is nondischargeable will still need to be paid even after filing bankruptcy; common ones include child support, alimony, and student loans. While homeowners can often wipe out many debts and free up some income by filing Chapter 7, any debt that may fall into this category will have to be taken into consideration when planning a future budget after foreclosure and bankruptcy.

Chapter 13 bankruptcy is a reorganization plan that is used by consumers to pay off their debts under the protection of the courts. Home mortgages can be included in bankruptcy proceedings, and allow the homeowners to pay back the amount they have fallen behind, along with keeping up to date on their regular payments. The payment plan during this type of bankruptcy is either three or five years, depending on the circumstances, amount of debt, income situation, and other considerations. The main reason homeowners may wish to consider bankruptcy is that is has been designed to come to fair terms with all of the creditors and allow the foreclosure victims to get a fresh start.

When a lender claims that a loan has gone into default, it means that the homeowners failed to perform one of their legal duties under the mortgage contract. When the monthly payments are not sent in at the agreed-upon time, the mortgage contract is considered to be in default. Default can also refer to the homeowners' failure to respond to the complaint filed in the foreclosure lawsuit, and will lead to the lender being awarded a default judgment. Thus, in the foreclosure process, default first occurs when the loan falls behind and the bank believes the homeowners have no intention or ability to repay, and then again if the foreclosure victims fail to respond to the foreclosure lawsuit.

Especially in cases where mortgage fraud may be suspected, or the homeowners are attempting to work with a difficult bank, a court decision called an injunction may be necessary. This is essentially an order designed to prevent harm from being done to the homeowners, either to hold off on the eviction process, or credit payments that have been made that the lender claims were "lost," but for which the owners can show proof. Essentially, it is designed to protect the homeowners against future injuries against them by the lender. Injunctions can be used against the lender to make them do something or prevent them from taking an action against the foreclosure victims.

Although most homeowners facing foreclosure would like to hire an attorney to defend them in court, this option may not be available, mainly due to cost. This does not, of course, preclude them from fighting back against the legal process that is attempting to take their homes from them. Homeowners may be able to defend themselves, and courts refer to such self-represented parties as pro per or pro se. Each phrase has the same meaning, designating a party to a lawsuit that is handling his or her own case without representation.

Class action lawsuits are one of the most effective means that have been brought to bear on negligent, fraudulent, or predatory lenders. Using this type of lawsuit, former foreclosure victims have grouped together and sued such big names as Ocwen and Fairbanks Capital (a/k/a Select Portfolio Servicing), claiming damages amounting to tens of millions of dollars. If widespread fraud or incompetence on the part of a lender is uncovered, which led to many people losing their homes unnecessarily, a class action may provide relief and shut down the unethical business.

A default judgment is typically awarded to the mortgage lender in foreclosure situations simply because the owners of the property do not file an answer or appear in court on the hearing date. Their silence is taken by the judge to mean that they have no disagreement with the lawsuit and do not wish to defend against it. Therefore, the case is decided for the lender, who is able to proceed to a sheriff sale and the eviction of the homeowners. This is one reason that is is absolutely vital that foreclosure victims at least show up to the hearing, if only to request more time to save their homes or defend against an unjust lawsuit. There is absolutely no reason to make it this easy on the lender to foreclose on the home, without even showing up to request a chance to obtain a new beginning.

Lis Pendens is a Latin term meaning "a suit pending," and is most frequently used to describe a foreclosure lawsuit that has been initiated against a particular property. A document called a lis pendens may be filed at the county recorders office, which will inform anyone researching the property that it is subject to litigation. The document informs everyone with any potential interest in the property that nothing should be changed with regards to it as long as the suit is pending in court; this is one reason few banks will lend money if a house is in foreclosure. It also indicates that the title to the property is in question and may be transferred if the house is sold at a public county foreclosure auction.

A secured debt is used to describe the mortgage, which was money loaned in return for a lien to be placed on a particular piece of property. The lender's interest is a security (the house) that will cover the debt (mortgage) that is owed if the loan payments are stopped. If the mortgage agreement is broken by the debtors, foreclosure proceedings may be initiated against the homeowners. In this process, the bank will be able to force the sale of the collateral, the home, in order to pay off the debt secured by the house. Also, lenders have no recourse to any other assets during the foreclosure lawsuit, as only the house is pledged as collateral for a mortgage. They can not take any other asset until after the foreclosure, and then only in certain specific circumstances in some states that allow for it.

There are many more terms that will come up during the foreclosure lawsuit, and state and local court rules will inevitably use different terms to describe the same or similar ones to those mentioned here. Homeowners should look up their state's rules of evidence, and the local court's rules, as well as practice by reading through their own legal paperwork. Picking up a small law dictionary will also help, and it can shed light on seemingly very confusing legal forms with dense "legalese" language. Defending against a very clearly defaulted mortgage may be difficult, if not impossible, but foreclosure victims can show the court that they will not simply be pushed out of their homes without utilizing every resources available to them, including court-ordered options. A judge with a motivated homeowner in front of him can often order the bank to attempt working with the owners to stop foreclosure completely or put the court proceedings on hold until a better solution is worked out.