Anatomy of a Foreclosure Case: The Complaint

by J. Kutkowski on January 19, 2015

I’m a fan of mob movies and video games.  Whether it is Tony Montana or Carlito’s Way, or even the lovable Tommy Vercetti from the Grand Theft Auto series, one of the things they say is “go to the mattresses”.  Essentially what that means is that one of their guys is in trouble and they are sending some of the gang to go to his apartment to protect him.  A foreclosure case is similar.  If you don’t get some help, the bank is going to have its way with you, but if you do hire an experienced foreclosure defense attorney, you have a much better chance of having a positive outcome.Tony Montana

A positive outcome for some people is getting a year of time before moving. For other families, it is trying to prove the bank did something fraudulently that should bar them from foreclosing.  For others, it is getting money to move and for some, it is getting a mortgage modification.

Over the next few weeks, I will be breaking down a foreclosure complaint and showing you exactly how I responded to it.  This is an ongoing case that I was hired to defend, so I will be redacting information that will make it possible for the reader to figure out who’s case it is, but I will point out the various tactics I’ve used and keep you updated on how the case is going.  Today I will be reviewing the first step in the foreclosure process, the complaint.

The first step in a foreclosure is a complaint being filed and served.  This is a memorable experience, one that will normally send you to your phone book or internet browser to find an attorney.  DO NOT WAIT!  The law gives you specific deadlines that you must follow and if you pass these deadlines, many of your rights will disappear.

The complaint is a typed document.

CaptionYou_Have_Been_Sued_In_CourtThe first page of a complaint is a county cover-sheet.  Each county in Pennsylvania, including York and Adams county, has a cover sheet that is used to manage the cases in the Courts of Common Pleas.

The second page of the complaint contains the caption.  The caption has the name of the Plaintiff and the name of the Defendant, as well as a case Cover_Pagenumber and possibly, but not always, the name of the judge the case is being assigned to. If you are in a place like Montrose in Susquehanna County where there is one judge, you know who the judge will be, but in a place like York or Lehigh County where there are many judges, your guess is as good as mine until the judge is actually assigned.  The caption often contains information that can be useful in defending your case, or at least planning your defense.

If the caption names Ocwen or Bank of America as the Plaintiff, I know I am dealing with a lender that has had record keeping problems in the past and after nearly 10 years of defending foreclosures, I know where the problems are usually hidden.  If the caption
names a trust, then I know there is a trust prospectus and other trust documents that need to be investigated to determine if the loan was properly securitized.  (As an aside, many hucksters out there are selling securitization audits as if they alone will stop the foreclosure.  If you don’t have a competent professional helping you, this report is the equivalent of giving a monkey an abacus, it isn’t going to help.).  Often times, the caption alone is enough for me to tell there is going to be a problem.monkey

The next page will normally have a page that says “YOU HAVE You_Have_Been_Sued_In_CourtBEEN SUED IN COURT” and then gives a listing of the local bar association who will give a referral.  If you are in Pennsylvania and you are reading this, you don’t need to call the bar association.  I will defend a foreclosure in any county in the state.  If you are wondering how a guy in York County is going to defend  a case four hours away, give me a call or send me an email, I will explain the process.

FDCPA_NoticeThe fourth page will say “NOTICE” and it will give you 30 days to challenge the validity of the debt.  This is deceiving.  If all you do is send a letter challenging the validity of the debt, you will default.  All consumer debts in the United States, including mortgages, are governed by the FDCPA.  This document is used to meet the requirements of the FDCPA.  You must take additional steps to avoid defaulting in state court.

The next group of pages are the body of the complaint.  This is where most of the information can be garnered.Complaint_Page_1

There are a lot of things that I look for in a complaint.  Over the next few weeks I will be picking this particular complaint apart and explaining my process on how to defend this particular case.  Unfortunately, most foreclosure cases end with the bank winning and getting the authority to foreclose, but I have held banks off for three years and could have held them off longer.  If you could hold your foreclosure off for three years, how much money could you save so you could land on your feet.  Maybe your kids have two years until graduation.  Wouldn’t it be great if they didn’t have to move homes during their senior year?  What is it worth to you to stand up to the bank?

If you are ready to go to the mattresses in the battle with your bank, give my office a call at 717-855-2309 or email me at and we can start working on your case.   You don’t have to do this alone.



Part of being a lawyer who practices in the Susquehanna Valley all the way to the Lehigh Valley involves driving.  A lot of driving.  York, where my main office is located, is an hour and a half to my other office in Allentown on a good day, and you all know how rare good traffic days are lately.

Fortunately, I have a satellite radio in my car and one of my guilty pleasures is the Blue Collar Comedy Station (Sirius/XM station 97).  It keeps me laughing when I’m wishing I had a rocket launcher on the hood of my Kia.


The other day I heard comedian Don Friesen for the first time.  His bit, “You got the money?” had me laughing.  Don suggested doing things that have crossed my mind when dealing with debt collectors, something that I do every day for my clients.  His perspective, though, was that of a debtor and not a debtor’s attorney with a big mallet to whack misbehaving debt collectors.

The bit is truly hilarious, and there is a link to it right here.

The first thing Don mentioned is that the collection agencies intimidated him, as if they worked for the mob.  Don’t let them intimidate you!  There is a specific set of laws called
the Fair Debt Collection Practices Act (FDCPA) that debt collectors must follow or they will be subjected to civil penalties that start at $1000 per violation (if you think you have been harassed by a debt collector, please email and we can discuss it further) plus attorneys fees and court costs.  Acting like a dirtbag can sometimes cost the debt collector more than the balance they are trying to collect, don’t let the debt collectors intimidate you, they are bullies behind a telephone, not the mob.  

phone-angry1The next thing that pops up is that the debt collector spoke with Don and then said they’d call back in an hour.  Unless you give the debt collector permission, such as offering a call back time, a debt collector is only allowed one contact per day.  It is a grey area whether or not a voice-mail is considered contact, but in this scenario, the debt collector called and asked if Don had the money, then told him they would call back in an hour but called back in 10 minutes.  What could have changed in 10 minutes?

If a debt collector says they are going to call back in an hour, you should explicitly tell them not to call back the rest of the day, if you don’t, they may be able to get around the one contact per day policy.  This is another grey area, I think it is a violation of the FDCPA to bully a consumer by telling them you are going to call back in an hour rather than ask permission, but there is certainly room for debate on that one.

The next question the debt collector asks is “can you borrow it from someone.”  I don’t ever recommend borrowing from Peter to pay Paul.  Let’s face it, owing anyone money sucks, I’d rather owe money to Mastercard than mom.  You can hang up on Mastercard, how did it go the last time you hung up on your mom? (For the record my mother is Italian, and I’m not saying Italian mothers are world-class experts at guilt, but I’m not not saying it either.)  Did you not regret it in under 30 seconds and call her back and apologize profusely?  I didn’t feel bad hanging up on Pete from Comcast the other day (and you were in India, not Indiana, do you think I’m stupid?).  Don’t borrow money to pay a debt, it would be like cutting the top of a blanket off and sewing it to the bottom in an attempt to make the blanket longer.  Asking you to borrow money to pay a balance is a favorite tactic of debt collectors, don’t get suckered into it.

A bit later into the bit, Don puts the debt collector on speaker-phone so his roommate can hear.  If you put the phone on speakerphone or allow a debt collector to speak to someone else about the account, that is fine, but if the debt collector speaks to a third party about your account without your permission, they have violated the FDCPA.  There is a possible exception about speaking to your spouse, but if a debt collector called my wife looking for me and mentioned that I was behind on a bill, that would tick me off.  I call that harassment, because they are setting me up to hear about it for eternity (I’m not really qualified to give marital advice, so don’t ask, but I can tell you what not to do.)  I don’t get these calls personally at this point in my life, but if it ever happened and they called my wife and disclosed information, they would have a lawsuit that would cause their eyes to bleed just by reading it.  If you give your roommate, spouse, dog the telephone and the debt collector discloses information, they are in the clear, but if they do it without your permission, that is an FDCPA violation.


Further along, Don pulls his credit report and lo and behold, its in rough shape.  He comments that even if he could he isn’t paying them now, he’s just going bankrupt.  Going bankrupt is a big decision, and a bad credit report usually isn’t a good enough reason in and of itself to file bankruptcy.  (For more information on what to think about when considering bankruptcy, click here).

Close to the end, Don joked that he got so mad at one guy he wrote him a check for nothing.  He probably was OK doing this, but tendering any payment can revive a time-barred debt, so be careful that your joke doesn’t revive an old account.  In Pennsylvania, the statute of limitations on debt is four years, which means if there hasn’t been a payment for fourt years, the creditor loses the right to sue to collect the account, but there is a dirty tactic that is being employed by debt-buyers.  They will call a debtor and say that for as little of a payment of $5, they can keep the account from going to the legal department.  What the debtor doesn’t know that the debt is already time-barred, and by making that $5 payment, they have revived the debt.

If even the tiniest payment is made on a time-barred account, it restarts the statute of limitations timer to four years, even if the first timer had run out.  

Sending a check for $0 or even a penny might seem like sweet revenge, but that revenge might cost you.

If you find yourself getting calls from debt collectors and it seems overwhelming, you don’t have to deal with them alone, call the Allentown office at 610-928-1233 or the York office at 717-855-2309 or email for a free consultation.   You don’t have to do this alone.  


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