Archive for May 7th, 2013

Is it Too Late to Defend Your Foreclosure Case? Probably Not.

I had a foreclosure trial today.  Ho, hum, right?  Just another foreclosure trial?  Well, this case was filed in 2010, and I was just retained in the case a few days ago.  As a result, there wasn’t time for me to do anything except file a Notice of Appearance and attend the trial.  You might wonder …

Can a foreclosure defense lawyer really help when retained right before trial?

Without filing any paperwork?

Why yes!  Yes I can!

This is far from ideal, don’t get me wrong.  If I’m retained at the outset of a foreclosure case, I can file the homeowner’s pleadings and ensure all defenses are preserved.  By waiting to retain counsel, many homeowners waive defenses by not asserting them soon enough.  That said, it’s certainly possible to defend a case at trial, even when retained at the last minute.  How can that be?  Simple.  Bank incompetence is pervasive in foreclosure cases.

We all know banks and their lawyers often fail to file the required paperwork.  There’s more to it than that.  You see, if you haven’t been putting up a big fight in your foreclosure case, and the case gets set for trial, then the plaintiff will probably treat the trial as an “uncontested” case.  That means they’ve prepared for trial (I use the term “prepared” very loosely here) as if nobody is going to attend trial in opposition.  When somebody shows up, it throws a big wrench in their plans.  It’s like going to a sporting event expecting the opposing team was going to forfeit because they didn’t have enough players, then realizing not only is the opposing team at the game, but they’ve recruited a handful of athletes who are bigger, faster, and stronger than anyone on your team.

I’m going to save the specific argument that I made as trial began.  (Some things have to stay a secret from the evil banksters and their lawyers (who, yes, read this blog)).  Suffice it to say that just a few minutes into trial, the issue was no longer whether a foreclosure judgment would be entered, but whether the case would be dismissed or the trial continued.  Yes, I appeared in the case just a few days ago and filed nothing, yet it was the plaintiff who was begging for a continuance to prevent the case from being dismissed.

After about 30 minutes of argument, the judge decided to continue the trial.  While I certainly would have preferred a dismissal, this homeowner went from getting a judgment entered against him (in all probability) to getting the trial continued.  Also, the judge agreed the bank’s case was such a mess that a new trial date wasn’t even scheduled, and the homeowner can continue living in the house in the meantime.

Foreclosure trials won’t always happen this way, of course.  Sometimes, if you wait to hire a foreclosure defense attorney until right before trial, you’re going to lose.  Sometimes, the failure to plead the necessary defenses makes it impossible for a homeowner to win, no matter how unprepared/sloppy the banks are.  Many times, however, hiring counsel, even at the last minute, can prevent foreclosure.


Mark Stopa

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