Hiring a Lawyer to Fight Your Foreclosure

The learning curve for some legal tasks is just too steep for many people to handle—especially given the other problems in their lives. If you realistically think you can keep your house by fighting your foreclosure in court, hire a lawyer if you can possibly afford it. If you are only trying to delay the inevitable, hire a lawyer if you can, but also consider handling the case (or most of it) by yourself.

Do You Need a Lawyer?

You will almost certainly need a lawyer if you are determined to keep your house by:

  • fighting a foreclosure in court, or
  • filing for Chapter 13 bankruptcy and making up missed payments over several years.

You will probably benefit from having a lawyer if you realize that you’ll probably lose the house sooner or later, but you want to delay the foreclosure and stay in your house as long as possible by:

  • fighting a foreclosure in court, or
  • filing for Chapter 13 bankruptcy.

When can you go it alone? Having a competent lawyer to represent you can always be to your benefit, but the amount you’ll have to pay for one can often outweigh the benefits. With that in mind, you might sensibly choose to represent yourself if:

  • you are filing for Chapter 7 bankruptcy to delay your foreclosure by a few months, or
  • you are filing for Chapter 7 bankruptcy to get rid of your other debts so your mortgage will be more affordable or so that you’ll emerge from your foreclosure with a fresh start.

You won't need a lawyer if you intend to sell your house in a short sale, transfer title to your lender in a deed in lieu of foreclosure, or negotiate a loan modification or forbearance, although you will benefit from the free help of a HUD-certified housing counselor

What Type of Lawyer Do You Need?

Most lawyers who represent people in foreclosure actions specialize in real estate transactions, consumer protection, or bankruptcy. As the number of foreclosures grows, so does the number of lawyers who have expertise in all three areas.

How do you know what expertise a lawyer has? Your best shot is to pop the question directly. Ask “Do you have the experience necessary to help me with my foreclosure?” or “How many foreclosure cases have you handled, and what were the results?” This approach may seem naïve, but most lawyers will appreciate this approach and give you honest answers.

As a general rule, if you want to keep your house but you have concluded that you don’t want to file for bankruptcy, a real estate lawyer may be the best choice. A real estate lawyer will be comfortable analyzing the lender’s paperwork and negotiating with the lender to keep you in your house. On the other hand, if it looks like you won’t be able to work something out with your lender, a bankruptcy lawyer is likely your best choice. Bankruptcy is a highly technical area, and few non-bankruptcy lawyers know the tricks of the trade.

How to Find the Right Lawyer

If you are looking for a lawyer, it’s worth it to shop around. Here are some tips.

Start with personal referrals. This is your best approach. If you know someone who was pleased with the services of a real estate or bankruptcy lawyer, call that lawyer first.

See whether you can get free or low-cost help. Many law schools sponsor clinics that provide free legal advice to consumers. And many places have senior law projects, with lawyers who will, without charge, help people over 55 with debt and foreclosure issues. To find something near you, do an online search for “senior legal services” in your area. Many parts of the country also have functioning legal aid offices that will help people who qualify (in other words, who are poor enough) deal with foreclosures. And if you don’t qualify, you may get a quality referral to a lawyer who won’t charge you as much as others in the community might.

Be careful with lawyer referral panels. Most county bar associations will give you the names of lawyers who have expertise in fighting foreclosures. But some bar associations may not do much screening of the lawyers they list. Ask about this when you call.

Check out online directories. Both bar associations and commercial websites provide lists of real estate lawyers online, usually with a lot more information about the lawyer than you’re likely to get in a yellow pages ad. Start with the lawyer directory on the Nolo website. It sets the standard for providing information about how the lawyer goes about the practice of law. Use Google to find other lawyers for your state or city.

Look for a bankruptcy expert. To find a good bankruptcy lawyer, consider using the membership directory of the National Association of Consumer Bankruptcy Attorneys at www.nacba.org. Membership in this organization is a good sign that the bankruptcy lawyer is tuned in to the nuances of bankruptcy, both generally and how it can be used to save your house or keep you in it longer. Also, because foreclosure and bankruptcy are so closely related these days, a bankruptcy lawyer will also likely be knowledgeable about foreclosures.

Choosing a Lawyer

No matter how you find a lawyer, these suggestions will help you make sure you have the best possible working relationship.

Keep in mind that you’re hiring the lawyer to perform a service for you. So fight any urge you have to surrender to or be intimidated by the lawyer. You should be the one who decides what you feel comfortable doing about your legal and financial affairs.

Second, make sure you have good chemistry with any lawyer you hire. When making an appointment, ask to talk directly to the lawyer. If you don’t get through, this may give you a hint as to how accessible the lawyer is.

If you are able to talk to the lawyer, ask some specific questions. Do you get clear, concise answers? Is the lawyer making an effort to teach you about your overall situation? If not, look for someone else. Also, pay attention to how the lawyer responds to your knowledge. If you’ve read this book, you’re already better informed than the average client. Does the lawyer appreciate your efforts to educate yourself?

Your main goal at the initial conference is to find out what the lawyer recommends in your case and how much it will cost. Go home and think about the lawyer’s suggestions. If they don’t make sense or you have other reservations, call someone else.

When shopping for a lawyer, it’s common to hire the first one you talk to, unless the lawyer’s fees are way out of your league or you really don’t get along with the lawyer. You would be best served by visiting a few people before making your final decision. But how do you bring yourself to say, “Thanks for the information. I’ll think about it and give you a call”? Repeat this to yourself 100 times before you make your first contact. After you walk away the first time, the rest will come naturally.

Excerpted from The Foreclosure Survival Guide, by Stephen Elias (Nolo).

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