Am I simply delaying the inevitable by hiring a foreclosure defense attorney?
My wife and I were served with foreclosure papers. I lost my corporate job 8 months ago and the last mortgage payment we made was six months ago. If I hire the best foreclosure defense attorney, is he/she going to be able to win the case for me? I have heard that some foreclosure attorneys charge a monthly fee for every month they keep someone in their house, which leads me to believe that eventually the case will be lost and the people will be kicked out of their house. What are my chances of getting the mortgage wiped out all together and getting to stay in my house indefinitely? Is there any attorney who can help me do that? If not, am I not just postponing the inevitable? I hear that foreclosure cases move slowly anyway, so why pay an attorney just to buy time?
The federal programs are useless, and the “workouts” the mortgage companies offer, if they offer any, are normally completely useless. They string people out while they advance the foreclosure, and often people only find out when it is too late that they will do little or nothing to help them.
However, there is no generic answer to your question. Many, perhaps most, of the mortgages originated in recent years are defective in a variety of ways, ranging from defective origination, defective servicing, internal defects in how the mortgage was transferred from the originator to the current holder, mortgage being sold as securities to Wall Streets, violation of TILA, RESPA and other Federal Consumer Law and defects in how insurance was handled, particularly force-placed insurance.
There are many attorneys who do nothing more than stall, and for some clients maybe a limited stall is all they want. Maybe more time to make their plans is sufficiently useful to them. Unfortunately, these days those kinds of attorneys are everywhere, and so if you were to hire one of them, it would be inevitable that the limited stall would reach the end and the foreclosure would then go forward.
It is untrue that foreclosure cases move slowly. Since there are so many of that kind of attorney, many people don’t realize that there are other options. While again it depends on court dockets and at times a case may slip between the cracks, a foreclosure can be concluded in as little as 120 days. Furthermore, beyond the loss of the home, there is also a very serious deficiency judgment problem, since the mortgage company can and will get a judgment for the entire difference between the total you owe, including all accruals, advances, costs, fees, etc., and the value of the property at the end of the foreclosure, and can then use the deficiency judgment to garnish wages, levy on bank accounts, vehicles, etc. for up to 20 years. They can also follow you all over the country with the judgment, and so can go after assets you own or income you have in other states.
REAL foreclosure litigation is not about stalling (although doing the litigation properly does take a great deal of time and so does slow the process down tremendously). Real foreclosure litigation is about peeling back all the layers of the onion and finding all the problems and issues with loan, lost notes, mortgage securization, the lending, the servicing and the foreclosure itself which might then be utilizable in defense of the foreclosure.
It is not realistic to expect to get a house for free, although occasionally it does happen. However, with a real defense, it may be possible to back the mortgage company into a corner where it will have no choice but to negotiate with you significantly better terms that would make it possible to keep the house.
Serious foreclosure litigation is extremely difficult and complicated. This is not something that even most attorneys know how to do. We have clients who are themselves attorneys, yet have come to us for help because they understand this, and realize that in order to have a chance against the “big guys” they need really qualified people to help them.
Doing this right is very complex, and each case has different issues and potential strategies. There is no way to know what issues exist in your case (or anyone else’s) without a detailed interview and careful analysis of the entire picture.
First of all, your goals are what should drive the defense. If your goal is to keep the house, then you need to fight the foreclosure in order to strengthen your negotiating position with the bank and determine who in fact is actually owed the money you originally borrowed.
In addition, the time you gain will allow you to strengthen your economic position and may even allow the value of your home to begin to rise as the overall market improves.
There are cases, now coming to fruition, where staving off the foreclosure for a significant period allows the owner to move to quiet title. That means you get the house in the end. But to get from here to there requires a VIGOROUS and INTELLIGENT defense.
An attorney who takes a monthly fee to fight the foreclosure isn’t automatically doing a bad thing. They will certainly have an incentive to keep you in house for as long as possible. The alternative is to take a retainer and bill hourly. Most attorneys will do either, whatever works for you. But the important point is to find an attorney who fights these cases with knowledge and passion. The banks have totally abdicated their legal and moral authority in many of these cases and rely on your sense of guilt and shame to simply roll over. As good attorneys fight this fight they are slowly educating the courts as to the fraud they often try to impose on the lender and the courts.
To protect your home and your legal position as to the outstanding debt you need to defend against this suit.