You'll have to make some tough decisions when facing a foreclosure. For example, you will need to decide if you want to fight the foreclosure. You'll also need to figure out if it's worthwhile to get a foreclosure defense attorney to help you.
If you have a legitimate defense to the foreclosure and want to keep your home, you'll most likely need a lawyer to assist you. An attorney can defend you in court against the foreclosure, advise you about your legal rights under federal and state law, and help you enforce those rights.
A foreclosure defense lawyer can also tell you about different loss mitigation options, like getting a loan modification, or whether you should think about filing for bankruptcy, and help you work out a way to avoid a foreclosure.
But in some situations, say you just want to live in the home (payment free) through the foreclosure process, then you probably don't need to hire a lawyer.
Legally speaking, you don't have to hire a lawyer to represent you in a foreclosure. You can represent yourself "pro se," which means without an attorney. To fight the foreclosure, you'll have to raise your defenses in court, either by filing your own lawsuit if the foreclosure is nonjudicial or responding to the lender's lawsuit if the foreclosure is judicial. (You could also choose to do nothing and let the foreclosure happen.)
But each foreclosure case is different and has complicated nuances that can ultimately make or break the case. The learning curve for most legal tasks associated with defending against a foreclosure is just too steep for many people, especially given the other pressures in their lives when struggling financially.
Even if you think you have a defense to a foreclosure, you might not have the legal knowledge or ability to prove it. Most homeowners who try to represent themselves in court against a foreclosure end up losing their homes.
A foreclosure defense attorney will analyze your case's circumstances and the facts to determine the best strategy for defending against the foreclosure action. Also, foreclosure defense lawyers can identify defenses that you might not recognize. So, if you really think you can keep your house by raising a foreclosure defense, you should hire a foreclosure defense lawyer if you can afford it.
Some defenses that probably require the assistance of an attorney include the following.
Because it's very unlikely that you'll be able to get your home back after a completed foreclosure, you want to raise any defenses before the sale. Having an attorney on your side gives you a better chance of saving your home from foreclosure.
Depending on what you hope to accomplish, you might not need to hire a foreclosure defense lawyer. You probably don't need to hire an attorney if you only want to stay in the home during the foreclosure process or buy yourself some extra time to live in the property.
You don't need a lawyer to apply for loss mitigation or attend mediation. And you might even find a way to keep your home by going through the loss mitigation or mediation process.
If you want, you can submit a loss mitigation application to your loan servicer without a foreclosure defense lawyer's help. Under federal law and some state laws, the servicer can't start or continue a foreclosure until it reviews your application. You might also get some time to appeal the decision.
However, keep in mind that if your goal is to save your home—not just delay the foreclosure process—a foreclosure defense attorney can handle negotiations and present your situation in the best possible way to the servicer, which might increase your chances of getting a foreclosure alternative.
Also, you can attend foreclosure mediation without hiring a foreclosure defense lawyer if this kind of program is available. But if you want the process to be successful—and not just postpone the eventual loss of your home—hiring a foreclosure defense attorney to help you through mediation is probably a good idea.
Again, you can choose not to hire a lawyer and represent yourself in a foreclosure. If you've already been served a foreclosure complaint, you must file an answer very quickly and accurately. You might also have to file motions and make court appearances. If you're facing a nonjudicial foreclosure, you'll need to file a lawsuit to stop the process.
But instead of doing these things yourself, a foreclosure defense attorney can do them on your behalf. While you're allowed to defend yourself against a foreclosure without a lawyer, it's not easy. Courts don't treat pro se individuals any differently than they treat lawyers. You'll have to comply with specific court procedural rules, filing processes, and meet all deadlines.
Unlike making a claim in small claims court, for example, foreclosure defense is simply not something that most homeowners can handle on their own. Foreclosure defense lawyers already know how the foreclosure process works in your state and how to respond to these cases.
In addition, attorneys have the right skills to fight foreclosures. Good foreclosure attorneys have years of training and extensive knowledge about the law. They know how to apply it properly in court documents and during a trial.
Again, fighting a foreclosure in court depends on whether the process is judicial or nonjudicial. Either way, your foreclosure defense attorney will file documents with the court, follow the rules of evidence, and attend court appearances.
To successfully defend your case, your foreclosure defense lawyer will find, read, and understand complex documents such as statutes and court decisions. Attorneys go to law school for three years and review these types of documents every day while practicing law to develop the skills needed to effectively handle foreclosure cases.
In the course of defending against the foreclosure, your attorney will have to respond quickly in writing (in the correct format) to documents you receive from the lender's attorney, file certain papers, like motions, with the court, meet deadlines, and maybe even handle a trial.
Hiring a foreclosure defense lawyer as soon as you know a foreclosure is looming, perhaps even before the process officially begins, gives you more options. Given enough time, a foreclosure defense attorney can probably help you work out a deal with the lender that will allow you to stay in the home or, if necessary, fight the foreclosure in court.
Before officially starting a foreclosure, the terms of most mortgages and deeds of trust require the lender to send you a notice called a "breach letter." This notice lets you know that the lender plans to start foreclosure proceedings if you don't get current on the loan. To stop the foreclosure from going ahead, you must pay the overdue amount, including principal, interest, fees, and costs, typically within 30 days.
Once you get a breach letter, you need to start looking for a foreclosure defense attorney, especially if you can't catch up on your payments and want to keep your home. Once the foreclosure officially starts, your lawyer will have limited time to take the steps needed to defend against the proceeding.
If you wait until you're well into the foreclosure process, your attorney might not be able to do anything to help you keep your home. The chance to apply for loss mitigation might have passed, or you could have missed an important deadline.
Even worse, if the foreclosure ends before you've hired a foreclosure defense lawyer, you probably can't get your home back (unless you get a right of redemption), even if the process had legal violations.
If you want to challenge the foreclosure in court, having a foreclosure defense attorney enhances your chances of success.
A lawyer can also tell you about all of your options, including filing for bankruptcy and different loss mitigation options, like a short sale or deed in lieu of foreclosure. Loan servicers and lenders don't always follow the law when processing loss mitigation applications, even though federal laws and sometimes state laws have specific requirements that they must follow.
An attorney can make sure that the servicer or lender complies with all relevant laws and handles your application, as well as the foreclosure, without violating the law.
Once you've decided that using a foreclosure defense attorney is in your best interest, your next step is to hire one. Consider talking to a few lawyers before deciding which one to hire.
If you can't afford a foreclosure defense attorney to represent you throughout the entire process, consider scheduling at least one consultation. At a minimum, a foreclosure defense lawyer can help you decide whether you should try to keep your home, as well as explain your legal rights and responsibilities to you.
Alternatively, if you can't afford a foreclosure defense attorney, a legal aid office might be able to help you for free if you meet certain criteria. You can find a list of various legal aid programs on the Legal Service Corporation's website.