November 10, 2015

Guardian Ad Litem – When to Appoint One in a Foreclosure Case?

A Guardian Ad Litem (also called an Attorney Ad Litem or Administrator Ad Litem) is generally appointed by the court to represent the interests of an unknown minor or incapacitated person. In the foreclosure context, the Guardian Ad Litem is usually appointed to represent the interests of an unknown entity or person, including someone who is in active military service. Often in a foreclosure case, the Plaintiff, i.e., the bank, names numerous people in its lawsuit to make sure that every potential interest in the property is “closed out.” However, the Plaintiff may not know the status of all of the parties in its lawsuit so it will appoint a GAL (Guardian Ad Litem for short) to contact these parties and ensure that their due process process rights are considered by the Court, even if the person cannot ultimately be located.

Arguably the primary reason that the Plaintiff’s appoint GAL’s is to ensure that they have clean title when they eventually go to sell the property. If not all parties were named in the foreclosure action or heirs of the borrower were never made aware of the lawsuit, then subsequent buyers may be leary about purchasing the property due to the fact that other people may still have an interest in the property. So really, Plaintiff’s appoint a GAL to make sure they can get insurable title after the foreclosure process is finished.

However, many Plaintiffs overlook the need to appoint a GAL and allow the foreclosure process to go to judgment without naming all parties. This presents a possible defense. While the judge and court may not find that it is a defense that you as a Defendant have or can assert, the bank will likely want to stop the proceeding and amend the complaint to make sure that all parties have been served thus buying you more time. Often the Defendant gets stuck doing the Plaintiff’s work for it but it can benefit you in the long run.