Archive for April 11th, 2012

When to Retain a Foreclosure Defense Lawyer

I talked to two prospective clients this week, and both conversations broke my heart.  In both cases, it was clear to me that I really could have helped these homeowners, but they waited too long to consult me.

In the first case, the homeowner failed to defend and was defaulted by the clerk.  A default, of course, is like a forfeit in sports.  It’s the court’s way of saying a defendant does not get to participate in a lawsuit or assert any defenses in opposition to foreclosure.  It is possible to vacate a default (and, hence, defend a case), but the longer one fails to act after having been defaulted, the harder it is to defend a case.

In this particular case, the bank was so slow to prosecute (even after getting a default against the homeowner) that the clerk issued a notice of intent to dismiss for lack of prosecution.  Incredibly, even after receiving that, the bank still failed to do anything for 60 days.  If this homeowner had consulted me at that point, I would have filed a motion to dismiss for lack of prosecution.  While I can’t “guarantee” anything, I am virtually certain I would have gotten that motion granted and the case would have been dismissed.  Alas, the homeowner did not consult with me, and about 120 days after the notice was issued, the bank finally woke up and filed something, precluding a dismissal.

An opportunity for a great result presented itself, but the homeowner didn’t have a lawyer, so the opportunity was lost.

In the second case, an elderly homeowner suffered a final judgment of foreclosure while trying to defend his foreclosure case himself.  He was desperate to file an appeal and willing to pay me to do so.  Sounds good, right?  Well, for me, it doesn’t matter if a client is willing to pay; if I don’t think I can help, I’m not going to take somone’s money.  Don’t get me wrong; I’m more than happy to take on an appeal.  The problem is that if a homeowner doesn’t make the appropriate arguments (in a procedurally proper way) before the foreclosure judgment was entered, then there is little any foreclosure defense lawyer can do about it on appeal.  After all, the purpose of an appeal is to ask the higher court to rule that the lower court made a legal error.  If the homeowner didn’t argue something correctly (or at all), then the appeal won’t be successful.

What really frustrated me about this case was that, prior to suffering the final judgment of foreclosure, the homeowner actually got the judge to dismiss the case with prejudice!  Unfortunately, the judge later vacated that order of dismissal upon a motion from the bank.  When I reviewed the transcript from the hearing on that motion, I was pulling my hair out with frustration, feeling confident that the judge would not have vacated his order of dismissal if I was involved in the case at that stage of the case.  Alas, I was not involved, so the motion was granted, the order of dismissal was vacated, and, ultimately, the homeowner was foreclosed.

What’s perhaps more frustrating about that is that the homeowner had enough money to pay for a court reporter and order a transcript of the hearing, but he tried to handle the hearing himself.  I’m sorry, but that’s ass backwards.

Look, I know that many homeowners think they know a lot about foreclosure law.  Some of them, quite frankly, have taken advantage of their unemployment (to the extent that’s even possible) by studying foreclosure laws.  That’s all fine and good, but I’d bet anything that I know far, far more about the arguments to make in opposition to a bank seeking to vacate an order of dismissal  under Rule 1.540.  As I read the transcript, it was clear this homeowner had no idea what to argue or what to say.  The bank brought witnesses to testify and the homeowner had no idea what to do.

This was a huge hearing, mind you.  If he won, then the order dismissing his foreclosure lawsuit with prejudice would have remained in place.  It was important enough for him to hire a court reporter, and he had the financial means to do so, yet he decided to handle this hearing without a lawyer.  Sigh.

By no means are lawyers perfect, and that includes foreclosure defense lawyers.  However, these were two examples, just from this week, where it was very apparent to me that I could have helped homeowners avoid foreclosure if only those homeowners had consulted with me sooner.

So if you’re wondering when to retain a foreclosure defense attorney, learn from the mistakes of these two homeowners.  Hire a lawyer to defend your case from the outset.  If you don’t, you risk missing out on viable arguments and defenses that may well help you avoid foreclosure.

Mark Stopa

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