Why a Counterclaim Is Necessary in Foreclosure-Related Evictions
By Yusef El
Most unlawful detainer actions after foreclosure do not allow defendants to raise defenses related to the validity of the foreclosure itself. The court’s focus is typically narrow: Who has the right to possession?
That’s where your counterclaim becomes critical.
1. Preserve Your Rights
If you fail to raise issues like wrongful foreclosure, breach of contract, or fraud as part of a counterclaim, you may permanently lose the right to litigate those issues later. Filing a counterclaim allows you to preserve your legal claims on the record and create leverage.
2. Force the Plaintiff Into a Defensive Position
The plaintiff enters court expecting a simple possession hearing. Your counterclaim disrupts that assumption. You shift the posture of the case by forcing them to defend their own conduct, foreclosure process, or lack of lawful title.
3. Establish Standing and Contest Jurisdiction
Most UD courts operate under the presumption that you are a tenant holding over. If you do not rebut that presumption, the court has jurisdiction to proceed. A counterclaim asserting lack of standing or void judgment challenges that presumption and contests the court’s authority.
4. Create a Basis for Removal or Consolidation
When you file a counterclaim involving federal questions—such as violations of the Truth in Lending Act (TILA), Real Estate Settlement Procedures Act (RESPA), or Fair Debt Collection Practices Act (FDCPA)—you may become eligible to remove the case to federal court or consolidate it with a quiet title action.
5. Introduce Evidence and Facts Otherwise Barred
Most eviction hearings are limited to the issue of possession and exclude broader evidence. A counterclaim opens the door to admissibility of documents, affidavits, contracts, foreclosure records, and chain of title issues that would otherwise be deemed irrelevant.
Practical Example:
Let’s say you are served with an unlawful detainer after a non-judicial foreclosure. You respond with a timely answer and include a counterclaim asserting:
*Fraud in the foreclosure process
*Violation of state foreclosure laws
*Failure to properly assign the deed of trust
*Lack of standing to foreclose
*Denial of due process
If successful, your counterclaim could completely nullify the plaintiff’s original claim and even entitle you to damages, injunctive relief, or reinstatement of title.
Conclusion
The counterclaim is your sword in a battle where most defendants walk into court unarmed. It transforms a narrow, accelerated eviction hearing into a full-fledged challenge of the foreclosure itself. Failing to file a counterclaim is tantamount to conceding your position—and may forfeit your rights permanently.
Before you walk into any court defending your right to stay in your home, ask yourself this: Have I filed my counterclaim?
