Stopping a Foreclosure Sale
I just received an email from a prospective client which asked if I can stop a foreclosure sale that is scheduled for Monday, September 10, 2012 at 9:00. Today, of course, is Sunday, September 9, 2012. Hence, this homeowner is asking that I stop a foreclosure sale that is scheduled for tomorrow morning at 9:00.
I’d like to think I’m good at my craft. Unfortunately, this request, though sincere, has been made too late. Quite simply, this homeowner waited too long to seek my assistance.
As a practical matter, there is no way, even if I had been willing to take this homeowner’s case and start working on a Sunday, that I could file a motion or get a hearing – even on an emergency basis – before 9am on Monday. Heck, even if the foreclosure sale had been scheduled for 11am, I wouldn’t have been able to get a hearing beforehand. The court system is not equipped to allow hearings this quickly, and that’s if there is even a basis to ask the court for relief (when this homeowner’s case is post-judgment, meaning she has already lost the foreclosure case).
Since there’s nothing that can be filed in the foreclosure case itself, the only possible way to cancel this sale is to file bankruptcy. The good news about bankruptcy is that it has an automatic stay, meaning, basically, that if a bankruptcy is filed before a foreclosure sale that the foreclosure sale must be cancelled as a matter of federal law. Homeowners file bankruptcy right before a foreclosure sale (in order to buy more time in their homes) all of the time, and it’s perfectly legal. Stopa Law Firm files bankruptcy for Florida homeowners in this situation, and many other bankruptcy firms do as well.
But here’s the problem … Bankruptcy isn’t something I can just run to the courthouse and file. The client has to complete a bankruptcy petition, which is full of financial information and documentation. Even if the client were to file a “bare bones” petition, temporarily omitting some of the requisite information (with the intent of providing it later), a petition still needs to be filed and a filing fee needs to be paid. As a practical matter, this just isn’t something that can be done without at least one business day. To put that into perspective, my office often talks to existing clients about the possibility of filing bankruptcy weeks beforehand.
I hate to say it, but the reason I’m writing about this is because it’s the perfect example of what not to do.
I realize everyone is busy and has different challenges and issues in life, so I’m not trying to be judgmental. Frankly, I wouldn’t want to have to walk in some of my clients’ shoes. That said, if you want to avoid/prevent/stop a foreclosure sale, you simply cannot wait this long to seek assistance. If you wait until a foreclosure sale is about to take place before soliciting counsel, you may be able to file a bankruptcy to stop the sale, but that sale will likely be rescheduled a few months later, so that’s all you will have gained – a few months. (Remember, by the time a sale is scheduled, the foreclosure case is already over, and the time to seek rehearing or appeal in the foreclosure case has likely passed, so your options are limited at that point.)
If you obtain counsel sooner, i.e. before a Final Judgment is entered, or, preferrably, right after the foreclosure lawsuit is filed, then your chances of obtaining meaningful help from a foreclosure defense lawyer are improved significantly. There are almost always defenses that can be interposed if I get involved in a case in the beginning. There are almost always things I can do to help homeowners – with more than a few month “stall” that comes from filing bankruptcy before a foreclosure sale. Sadly, though, if you go into “denial mode,” bury your head in the sand about your foreclosure problems, and then seek help at the last minute, it may be too late to do anything.
Mark Stopa
www.stayinmyhome.com
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