While many homeowners decide to go it alone when facing foreclosure, others decide on legal counsel. Yet finding and choosing the right foreclosure defense attorney can be an arduous task. Here are some tips on how to make the right choice:
Consult With HUD
Homeowners behind on mortgage payments should steer clear of lawyers looking for a quick pay day. In fact, no money should exchange hands until your case is resolved. The best option is to first consult with a HUD-certified housing counselor before contacting an attorney. The Department of Housing and Urban Development has numerous free services listed on its online site. Simply locate your state, and the counseling agencies will be listed alphabetically by city. Under “Counseling Services,” select an agency that deals with “mortgage delinquency and default resolution counseling.”
Experienced counselors can help homeowners navigate the foreclosure process and facilitate the mortgage modification process. They can also assist homeowners in getting organized should they ultimately opt for legal counsel.
“You can do yourself a favor by creating a chronology, preferably no longer than one page, of what happened to you,” says Maeve Brown, the director of Housing and Economic Rights Advocates, in Oakland, CA.
Homeowners are advised to list the specifics of their case, such as are they the victims of a predatory loan or were they unfairly rejected for mortgage modification?
“A lawyer will look at the origination of your loan, will take a look to see if there were any unfair practices involved in the creation of that mortgage,” says Ira Rheingold, director of the National Association of Consumer Advocates (NACA.) “The next thing an attorney will want is a history of your correspondence.” This should include all mail and phone conversations that they homeowner has exchanged with the bank.
Following consultation with a counselor, if the homeowner still would like legal representation, there are several avenues to locate a qualified lawyer.
Call Legal Aid
To ensure the homeowner doesn’t become the victim of a foreclosure scam, it is best to contact a local Legal Aid office. The Legal Services Corp, an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans, can refer homeowners to a qualified attorney.
Brian V. Lee, a bankruptcy attorney advises the following: “I would say this about hiring a prospective attorney to assist with a foreclosure: You’re not looking for a new friend. You’re not hiring a life coach or a therapist. It doesn’t really matter how you got where you are, but where you want to be.”
Brown adds that an attorney will determine if “they were lied to, they were defrauded, they were put into loans that were bigger than what they could afford and they did not have the expertise to know that, or were more expensive than they were actually qualified to get.”
And Rheingold says: “The next thing an attorney will want is a history of your correspondence. … They’ll examine whether or not the bank acted appropriately, whether they met the standards of what they’re supposed to do in terms of whether it’s a HAMP or another modification program, or if it’s an FHA loan, whether they met the FHA standards.”
If a homeowner is unable to locate their promissory note or other legal documentation, an attorney can delay foreclosure, yet they may not be able to prevent it. They may, however, me able to negotiate a mortgage modification or another solution.
Predatory Lending Cases
For predatory lending cases, an attorney can administrative complaints with state or federal regulators, or a lawsuit in state or federal court, which may force the bank to the negotiating table.
“You’re not going to give the person a free home, but you could redo the mortgage,” Rheingold says.
Rheingold says foreclosure attorneys should never charge clients if “you don’t have sufficient income to support your house. So, any lawyer who, without knowing what your income is, immediately says, `I can help you, I can save your house,’ then they may not be worth their salt.”
According to EV Häs, LLC, a Chicago foreclosure firm, “Beware of attorneys who charge fees for your initial consultation, as they are most likely looking to profit from the consultation fee versus actually defending you in court. A sincere foreclosure defense attorney knows this process takes time and considerable effort and litigation. He or she will not promise immediate results or charge flat one-time all-inclusive fees.”
Also, lawyers that claim that a homeowner’s situation is beyond repair are also suspect. According to Carol Asbury, a lawyer and owner of Save My Home Law Group, in Fort Lauderdale, FL, “They say, `Well, there’s nothing you can really do about it. You haven’t been paying. I can buy you maybe six months, maybe a year. But eventually you’re going to lose your house.’ That doesn’t give you much confidence, does it?”
Though sometimes all attorneys can do is buy a homeowner time.
“But I’m doing it with a purpose,” Asbury says. “I can stall this for a little bit, but you’ve got to realize the point of stalling is to get you a job so you can get back on your feet and reinvent yourself.”
What to Expect
A foreclosure attorney should at a minimum leave the homeowner with a plan, whether it’s mortgage modification, a fraud complaint with the attorney general, a foreclosure delay through a note ownership challenge, or another course of action.
“The only thing I give away free here, to every person who walks through the door, is a direction,” Asbury says. “They’ll know, when they leave here, whether they hire us or not, where they need to go and what they need to do.”
According to EV Häs, “The ideal foreclosure defense attorney should be an experienced civil litigator with a strong grasp as to how the following areas affect your foreclosure: Civil Procedure, Trust Law, Rules of Evidence, Federal Tax and Securities Law, Real Estate Law, Contract Law, Negotiable Instruments, and Secured Transactions. Each of these areas affect your foreclosure. In addition, they must address your long-term issues of life after foreclosure.”