Posted On: May 1, 2010 by Watts & Herring, LLC

Seven Things To Ask Your Foreclosure Defense Lawyer Before Hiring

Hiring a foreclosure defense lawyer is a very serious matter. It should not be based upon a billboard (drive through Florida and you'll know what I mean) . . . it should not be based upon a television ad . . . or what your know it all brother in law says . . . or even a website.

Instead you need to find out if the potential lawyer you are looking to hire to advise you and represent you in your foreclosure case is the right one for you . . . not the right one for anyone else but the right one for you.

Here are seven suggested topics or questions to ask prospective foreclosure defense lawyers. You will think of other things but hopefully this will give you a good start:

1. How many foreclosure cases have you handled in court where you are actually litigating against the mortgage company (and filing a bankruptcy does not count as litigating)?
There is nothing wrong with being a new lawyer or being a lawyer that has never handled litigation cases against mortgage companies. But, you might want to know the level of experience your potential forecosure defense lawyer has so you can decide if he or she is right for you.

Ask if the lawyer has actually been in court. If the lawyer has actually sued a mortgage company or merely has thought about suing a mortgage company. Has the lawyer ever defended an Alabama consumer against an ejectment or eviction action after the foreclosure sale of their home.

You get the idea - get a feel for what the lawyer has experienced.

The advantage of experience is not being as easily surprised when facing situations. Litigation is notorious for bringing up surprises and if your lawyer is not prepared for the tricks of mortgage companies in litigation, then you may be disappointed.

This is not to say an experienced litigation lawyer is the best or an inexperienced lawyer is bad but this is an area of discussion you should consider exploring . . . .

2. How often do you attend training classes and seminars to learn the latest about new tactics and strategies of mortgage companies?
I've been handling car wreck cases for 15 years. There has not been much change in the law. The area of foreclosures and the way that home loans are structured has changed significantly. Foreclosure cases I handled five years ago are different than the way they need to be handled now.

We have a company called MERS that has fundamentally changed the way mortgages and notes are handled in this country. . . for the worse I might add . . .

Instead of mortgage companies holding mortgages for 30 years or until the home is sold or refinanced, we now have companies that immediately sell the loans to a company called a "depositor" who then supposedly sells the loans to a Trust. . . . but . . . The Trusts normally do not actually own the loans so the threatened foreclosures and actual foreclosures are improper if the Trust does not own the loan.

I say all of this point out that there is great change in this area of the law and one way (not the only way but one way) to learn and stay on the cutting edge is by attending seminars and conferences where your lawyer can brainstorm with other foreclosure defense lawyers.

Stan Herring and I have spent a great deal of time and money to attend conferences and seminars to stay on the cutting edge. This is not required to be an effective lawyer but this is something you might want to ask about as you interview potential foreclosure defense lawyers.

3. What type of materials do you have for me to review - books, videos, audios, etc. - so I can learn more about foreclosures and how you operate?
Some foreclosure defense lawyers believe that you do not deserve "free information" - instead you should simply trust that the lawyer knows the best way to represent you. Some lawyers do not want to share written or video information with you.

Why? Because of fear that you will take the information and then not hire the lawyer. This is a scarcity mentality.

You have to decide if you like this approach or if you prefer to learn more information about the foreclosure situation you are facing . . . if you would like to read a book or watch videos or read blog posts or articles about foreclosures, then you should seek that information out.

I won't say whether it is best for lawyers to offer information or if it is better to hide it . . . but I will tell you that my approach and the approach of Stan Herring is to share information. You can read a large number of articles on this blog about foreclosure and by looking at our website article section. You can also look at consumer guides that I have written on Avvo.com and many of these concern foreclosures. You can also look at our videos on Youtube.com which include videos on foreclosure.

You can request our books on Stopping Wrongful Foreclosures In Alabama and Mistakes Consumers Often Make When Facing An Alabama Ejectment Suit.

Decide which approach you prefer - to have information or to have information withheld - and let that influence your decision on what approach to take in your own situation.

4. Are you licensed in Alabama?
This may seem to be a silly question but here is why I suggest you ask this . . . there are so many lawyers around the country that are viewing the foreclosure crisis as a wonderful opportunity to scam and cheat people.

One classic way is for lawyers not licensed in Alabama to promise that they can "get a modification" or that they can "scare" the mortgage companies into stopping your foreclosure. They say this even though . . . they can't even practice law in Alabama!

If you search online you will see all sorts of groups that either are or claim to be lawyers that make amazing claims to be able to help you in Alabama. It is a legitimate question to ask:

"Are you a licensed lawyer in Alabama?"
"Can you represent me in Alabama to stop the foreclosure?"
"If the foreclosure happens and I get sued for ejectment, can you represent me in Alabama?"

If out of state lawyers can't represent you here, what about all of the non lawyers that are sending you advertisements or bombarding you with online ads? What about all of these "audit" or "TILA analysis" groups?

These groups will say that they will analyze your loan documents and then they will prepare a report that will intimidate your multibillion dollar mortgage company into being frightened by some group out of California or Chicago that can't do anything in Alabama.

You must make your own decision but do consider bringing up this question or topic with whoever you are looking at hiring as you face this difficult hour of your home being in jeapordy.

5. Is there only one way of doing things in your foreclosure defense efforts or do you have a variety of approaches?
There's the old expression that "to a man holding a hammer, everything appears to be a nail." The idea is that if you have only one way of doing things, you think that's the best way.

Some lawyers only have one approach. Other lawyers have more than one approach.

Its important for you to find out which group your potential lawyer falls into so you can decide what is the best.

Keep in mind that every person has different interests and desires.

Do you want to stay in your home?

Do you want to obtain a modification?

Do you want to file bankruptcy and pay your normal monthly payment as well as an amount more than that to the bankruptcy court?

Do you want the foreclosure to be stopped?

Do you want a foreclosure to be reversed?

Are you the victim of bogus charges and fees that drove you into foreclosure?

Have you been sued for ejectment because of fraud that led to the foreclosure?

For example, we do not file bankruptcies for Alabama consumers as we do not believe that for most people this is a good option. Instead we litigate cases in the court system to persuade the mortgage companies that it is in their best interest to compensate our clients for the bad conduct of the mortgage companies. Or we discuss before a foreclosure what would be a fair and reasonable settlement of our client's potential case.

We don't do everything - you won't see us file bankruptcy - but we do offer several options. You might prefer bankruptcy - if so perhaps you should consult a lawyer that only offers bankruptcy.

The point is that I suggest that you talk with a potential foreclosure defense lawyer to find out what approaches and options they can offer you so that you can decide on your own best course of action.

6. Is litigation the best way to deal with a foreclosure?
Not necessarily in my opinion.

Let me explain. Perhaps you are behind on your house payments but now you make plenty of money and can afford to pay your normal payment plus an "arrearage" - the amount of back payments you owe - so filing bankruptcy might be the best option.

But if you are the victim of fraud or bogus charges and fees, and if you plan on staying in your home, then litigation might be the best option.

By litigation I mean sometimes suing the mortgage company to stop the fraud. Other times this means when the mortgage company sues you for "ejectment" or eviction that you fight back by answering the lawsuit and filing a counterclaim.

I would suggest you ask this question of any lawyer you are talking to about helping you with saving your home. I personally don't always feel litigation is the best method - but normally I think it is the best option.

Let me explain.

When you are in litigation, you are not dealing with some unhappy disgruntled employee in a cubicle somewhere who really doesn't care about you. Instead, you have the company paying its lawyers hundreds of dollars per hour and those lawyers are telling the mortgage company that if it is guilty of fraud or bogus charges and expenses and the other things that we often sue mortgage companies for - then the company is going to have some serious issues facing a jury of Alabama consumers.

It tends to make the company escalate the process so someone with some real authority is making decisions on your loan - not the cubicle guy who won't return your phone call.

So, yes, I am not embarassed at all about feeling litigation is normally the best option if you have legitimate claims you can bring. In the month of April Stan and I filed ten foreclosure lawsuits against a variety of mortgage companies because in those cases we felt the best approach (and sometimes the only approach) was to file suit to best represent our clients.

You need to talk with a potential foreclosure defense lawyer to find the best answer for you.

7. How do you get paid - I'm not sure I can afford to pay a lawyer an hourly rate?
I understand this concern. Its a very legitimate concern.

My hourly rate (and Stan's) is $350 per hour. Several federal court judges in Alabama have ruled this year that this is a fair and reasonable hourly rate.

These cases - whether in litigation or not in litigation (i.e. in court) - take up a lot of time. Even if we just work five or ten hours a month on your case . . . a very low estimate . . . that's still a lot of money.

But if we handled the case on a pure contingency, it would be difficult to settle the case as we have had consumers who became used to "living mortgage payment free" while the case proceeded and then it was hard to accept paying a mortgage payment again.

So we offer a combination approach to most consumers. A flat monthly fee that is affordable and also a contigency portion that is fair to everyone.

But our approach is not the only approach. You may find a lawyer that will represent you for nothing except the contigency fee - if that is the best for you then that's wonderful. Or maybe you find a lawyer who will represent you for $150 per hour. If that is best for you - great.

But do understand that there are different approaches and find the one that gets you the right lawyer for you at a level you can afford.

Conclusion
By discussing these topics with a potential foreclosure defense lawyer, this will give you more insight into whether the particular lawyer is the right fit for you. No one lawyer is perfect for everybody . . . and any lawyer that says he or she is the best for everyone should next be asking "Hey, where are you going?" as you run out of his or her office!

But which one is right for you. Which one do you feel comfortable with - which one inspires confidence in you? Which one has shown you they know what they are doing?

I hope this blog post has been helpful to you.

Best wishes in your situation with your home.

John Watts
Birmingham, Alabama

If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447.

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