By William Hudson
Due to the number of people in foreclosure, there is currently more demand than supply for competent attorneys who specialize in foreclosure defense. The most aggressive and successful attorneys now have the luxury of choosing the clients they decide to take-on. Therefore, it is important that the homeowner represent themselves in the best possible light when contacting a prospective attorney.
If the attorney’s first impression is that you are disorganized, unrealistic, or overly emotional- the attorney will politely say, “I’m afraid I can’t help you at this time.” This article will provide some background into how an attorney evaluates a client and what you can do to maximize your appeal as a prospective client by learning to be organized, concise and to present your case in its best light.
Because foreclosure is a highly emotional situation and involves highly complex contract litigation – many homeowners are forced into an overwhelming situation they don’t understand- and may have difficulty properly conveying what has occurred to an attorney. The urgency of obtaining counsel, the fear of losing their home, and the years of lies and deception cause clients that are usually very centered and rational to become untethered.
The situation is even more complicated because foreclosure litigation does not include one pivotal event and resulting consequence. In foreclosure there is usually the precipitating event that causes the foreclosure (illness, job loss, over-leveraged, divorce), followed by unsuccessful negotiations with an unresponsive servicer, and then finally litigation becomes necessary. Over this period of time 20 different events may have occurred all with different consequences and damages. Foreclosure litigation is a multidimensional practice containing elements of personal injury, real estate law, contract law and securities law.
Over time, the homeowner becomes buried in an avalanche of issues and many may not know what is or is not relevant to their case. When they get in front of an attorney the floodgates open and the attorney must try to quickly decipher years of events, violations, various players and the current status of the foreclosure. Therefore it helps to understand what an attorney is thinking when he agrees to consult with you on a prospective lawsuit and how you can prepare for the consultation.
How can a homeowner present themselves as a client worth representing? An attorney takes into consideration many factors to create an overall idea if the case is worth pursuing. The attorney will consider the merits of the case, the evidence, the client’s credibility, current trends in litigation, financial ability to pay, and especially how it may be like to work with the client through a case that could conceivably take years to settle.
Remember it is your job to present your case to the best of your ability. Attorneys typically will assess:
1. Whether the issue is legally cognizable.
2. Whether there are strong legal defenses.
3. Are there any procedural bars, such as statute of limitations or a prior judgment?
4. Are the damages in the case significant enough to warrant the involvement of an attorney?
5. Is the attorney comfortable in the substantive area of law and do they have sufficient staff?
6. Whether the opposing party can pay a damage award.
7. Do you have the financial resources to prosecute or defend the case?
8. Whether the attorney feels that after you have paid the necessary funds that you will be a satisfied client. This is determined at an early stage of the case and the projected value whether at settlement or trial.
An attorney can provide no assurances of success, must also act in their own best interests, and may make a decision not to represent you if you fail to present your case in a logical, organized manner that helps them understand the real issues. When you arrive bring a one page summary of your issues, a brief timeline, and copies of your Note, and any assignments and letters received from your mortgage company. Providing this information will allow the attorney to quickly take note of possible issues.
Most attorneys are not going to spend more than half an hour on an initial consultation so it is important that you focus on the most important aspects of the case. In order to retain the best attorney you must be the best client. Get organized, stick to the facts, and be able to tell your attorney what happened in less than 5 minutes-in a nutshell. Details can be shared later if the attorney is willing to represent you. I always suggest that clients put together a timeline so that the attorney and client can focus on the key events and it prevents many clients from going off-topic (which is easy to do when you have to relive the event every time you talk about the ordeal).
Remember that no matter how egregious your case may be, your attorney is not your therapist. Trust me, all foreclosure attorneys know you are hurting and have been wronged- but there is only so much they can do in terms of correcting how you have been harmed- and that starts with evaluating the events that have violated the law. Some foreclosure cases are so unjust and evil, that some attorneys I have spoken with say they can almost not bear to hear about the injustice day in and day out- and it makes their job very, very difficult.
You can help the attorney by attempting to stay as calm and unemotional as possible- and I understand how very difficult this can be. There is no doubt that humans act in horrible ways towards other humans, but an attorney’s job is to attempt to bring justice to one who is harmed within the confines of the law. The idea is to do everything in your power to prevail, and being organized will help both you and your attorney. A seasoned foreclosure attorney will be able to “fill in the blanks”.
Attached is an outline for homeowners to fill out prior to a consultation with a foreclosure attorney. There is also a checklist of items the attorney may need to properly evaluate your situation. Good luck and Keep it Simple.
The following items will help a foreclosure attorney evaluate your case:
1. Create a one page overview of your case, or your case in a “nutshell”. Forget the details and provide a “macro” account of your situation (see example).
2. Provide a brief timeline of key events (see example).
3. Gather copies of your documentation that you can leave behind for the attorney to review to include:
• Note (and any variations of your note you have been given)
• All Assignments, allonges, etc.
• Important correspondence (but only what is important)
• Go to your Department of County Records and get copies of all documents recorded
• Organize and copy bankruptcy or legal documents that are important
• Google all names on your Note and Assignments. Are they known robosigners?
The One-Page Summary Letter can be emailed or given to the attorney in person (example):
FORECLOSURE OVERVIEW: JOHN AND JANE DOE
Email Address * firstname.lastname@example.org
Your Full Name * John and Jane Doe
Phone Number 222-222-222
Relationship to Loan Homeowner – Primary Residence
What Have You Completed Thus Far? • Educated Myself
• Sent Debt Validation Letter
• Filed Bankruptcy
•Property Street Address * 2018 Elm Street
CITY * Miami
State: Property Located * Florida
ZIPCODE * 33102
COUNTY * Dade
IN FORECLOSURE? Yes
BRIEF BACKGROUND OF EVENTS TO DATE (3 paragraph explanation):
10 Key Points about your Case:
1. Forged Signatures
2. Fabricated Note
3. Servicer has no Assignment
4. Refuse to answer QWR
5. Revoked Modification when Compliant
6. Caused us to lose home
7. Failed to file Unlawful Detainer
8. Broke into Home
9. 4 Years of attempts to settle matter
10. Health and emotional issues from situation
Have you received any document or correspondence that names a “trustee” for an asset back securities pool? * NO
Sale Occurred? * YES
Title Search Complete? * YES
Notice of Default? YES
All Borrowers at same address? * YES
Are the addresses for the subject property, the billing address, and the contact address all the same? * YES
More than 1 Borrower? * YES-2
More than 1 LOAN? YES
Loan Status Information * DEFAULT
Name of “Creditor” if known UNKNOWN
Who sent Notice of default? CHASE YOUR TAIL BANK
Bankruptcy/Litigation Questions About Status of your proceeding • DISCHARGED
What are your goals for the property? Modification, negotiation, short sale, or full litigation and damages? • FULL DAMAGES FOR
• LAW VIOLATIONS
WIFE IS CURRENTLY HOSPITALIZED FOR STRESS.
EXAMPLE OF TIMELINE: FORECLOSURE TIMELINE
Filed under: foreclosure