2. Get your papers in order
Here’s the first bit of advice from lawyers: Before contacting a lawyer, call a HUD-certified housing counselor. The Department of Housing and Urban Development has a look-up page here. When you click on your state, the counseling agencies are sorted alphabetically by city. Under the heading “Counseling Services,” look for one that offers “mortgage delinquency and default resolution counseling.”
An experienced, well-connected counselor can cut through red tape and streamline the process of getting a mortgage modification, if that’s what you want.
Even if you end up working with a lawyer to fight foreclosure, the counselor will help you get organized.
3. Finding a lawyer
You have to get organized before a counselor or lawyer can help you. HUD-certified counselors don’t charge for their time, so have a counselor advise you on this step.
“You can do yourself a favor by creating a chronology, preferably no longer than one page, of what happened to you,” says Maeve Brown, a public-interest lawyer and director of Housing and Economic Rights Advocates, in Oakland, Calif. List the most important facts of the case: Did the lender bait-and-switch you with a predatory loan? Were you unfairly turned down for a mortgage modification?
And gather documentation, from the paperwork you gave the lender at application to the letters you got after you fell behind on payments. “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, executive director of the National Association of Consumer Advocates, “The next thing an attorney will want is a history of your correspondence.”
4. Put on your game face
After talking with a counselor, if you still want to consult a lawyer, it’s time to search for one. There are a number of ways to do it.
“Google,” says Carol Asbury, a lawyer and owner of Save My Home Law Group, in Fort Lauderdale, Fla. A Web search will find articles, like this one, that quote foreclosure lawyers. “I would say the most common way is the typical way, which is by word of mouth,” Asbury says.
But how do you find a trustworthy referral? Rheingold suggests calling a Legal Aid office. The Legal Services Corp. has a look-up page here. “If you qualify by income, that would be the best place to go,” Rheingold says. “If you don’t qualify by income, they might have some referrals for you.”
Rheingold suggests two websites. First, his employer, NACA (click on the “Find an Attorney” tab). Second, a nonprofit called Institute for Foreclosure Legal Assistance, a joint project of NACA and the Center for Responsible Lending.
Local bar associations can offer referrals, too. The American Bar Association has a look-up page here.
5. Identify the problem
An appointment with an attorney is a business meeting. Act accordingly.
Brian V. Lee, bankruptcy attorney and principal of Lee Legal PLLC in Washington, D.C., says: “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.”
It sounds harsh, but the point is that you must speak succinctly and talk about facts and not about emotions. And know what you want: Do you need help negotiating a loan workout? Do you seek a new loan to settle a claim of predatory lending? Do you simply want to buy time? Do you want to avoid a deficiency judgment?
6. Find the solution
In most cases, a lawyer will look for evidence of predatory lending that violated state or federal laws.
Brown says a lawyer will determine whether homeowners “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.”
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.”
In judicial foreclosure states, a lawyer might challenge a foreclosure on procedural grounds: that the original loan note can’t be found, or that court documents were signed or notarized improperly. These are the “missing note” and the “robo-signing” defenses.
7. Beware bad lawyers
The remedy depends upon what type of legal problem that the lawyer identifies.
If the problem is a missing note or a robo-signed legal document, then the attorney probably can only delay foreclosure — not prevent it. This kind of procedural defense can give the homeowner leverage to negotiate a mortgage modification or other kind of workout, Asbury says.
In cases involving predatory lending, the lawyer can file administrative complaints with state or federal regulators, or file a lawsuit in state or federal court. Ideally, this gets the mortgage servicer to the negotiating table. “You’re not going to give the person a free home, but you could redo the mortgage,” Rheingold says.
Brown says, “Part of the evaluation process is to determine whether it’s at all possible to get compensation from the entities that harmed them. Sometimes that’s part of the process of trying to keep the home.”
8. Leave with a plan
When choosing a lawyer to represent you in a foreclosure, there are red flags to watch for.
Rheingold says a lawyer shouldn’t take your money 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.”
Beware the opposite spiel, too. Asbury’s top warning sign: “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?”
Sometimes Asbury tells clients that all she can do is buy them time. “But I’m doing it with a purpose,” she says. Asbury tells some clients: “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.”
Finally, expect the lawyer to come up with a plan of action, whether it’s to negotiate a mortgage modification, file a fraud complaint with the attorney general, delay foreclosure by challenging ownership of the note or some other gambit.
“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.”