We have attempted to provide assistance here to attorneys and to people without attorneys. A good friend and colleague submitted the following piece which is well worth reading.
In reading through the many mortgage “horror stories” which I have seen both on your blog and elsewhere, it is understandable that homeowners who are being sued for foreclosure are frustrated with the system and that many have decided, through their own reading and possibly because of financial issues, to defend their case themselves and proceed to court without an attorney. Doing so not may not only hamper a homeowner’s efforts to defend the foreclosure, but may make the matter worse and actually wind up accelerating the foreclosure process.
An increasing popular perception among homeowners who “surf the net” is that (a) I can look up defenses to the foreclosure on the web and learn them, and (b) I can do this myself without an attorney and do just as good a job as if I paid an attorney to defend me. Both assumptions are deplorably incorrect.
The area of law in mortgage foreclosure defense is evolving at a rapid and unprecedented rate. Never in the history of the United States have so many foreclosure cases been filed in such a short period of time. The Judges of the Courts, who are for the most part already overworked, now have caseloads which well exceed any capacity which anyone could have imagined and, as to foreclosure cases (which were historically disposed of on a 5-minute “motion” hearing with little or no opposition from the homeowner), each case now has the potential for going all the way to trial. Further, not every Judge is an expert in any one area of the law, and most do not have the additional time to learn or keep up with a rapidly evolving area of the law such as mortgage foreclosure defense. Most mortgage foreclosure cases are “blind assigned” by the Clerk of the Court, meaning that the homeowner’s case could be assigned to a Judge with little or no knowledge of current mortgage foreclosure defense law. Strike one.
Lawyers attend three years of intensive schooling just to learn “legalese” and prepare for the Bar Exam. Real “lawyering” comes years later after an attorney has practiced his or her craft for literally hundreds of thousands of hours. Litigation, which is that area of the law involving court battles, is a specialty in itself. Professional litigators have years of training and experience in not only learning the actual law itself, but applying it in the proper manner in court papers and argument through the proper procedure and properly before the Judge. As Judges recognize a litigator, the case can proceed much more smoothly and properly on the law (including the establishment of defenses) when a litigator is involved. Judges usually have little or no time or patience with non-lawyers who try to argue their own cases. Strike two.
- As such, when a homeowner attempts to proceed in court without an attorney in defending a claim in a rapidly expanding area of the law, it is akin to going into battle against the Special Forces with a Boy Scout knife. The chances of a homeowner taking on the bank’s attorney and the Judge in their own backyard with no attorney can be likened to going into the Super Bowl with Donald Duck as the quarterback for your team. No insults are intended here as to homeowners; the homeowner just has to realize what is in store for them. The lender’s attorney is going to know that the homeowner does not know what is going on, so things may happen that probably would not happen if the homeowner had an attorney. Strike three, you’re out (of your house).
I would thus caution homeowners not to be “penny wise but pound foolish” when it comes to their foreclosure case. This is your home we are talking about here, and the defense of it is better left to the professionals. In sum, here is a piece of free legal advice to homeowners who want to defend their foreclosure case: “Don’t try this at home!”
Jeff Barnes, Esq.