While you have the legal right to defend yourself against a foreclosure without an attorney (called “pro se”), foreclosures are complicated and if you want to successfully fight the foreclosure, you should consider hiring, or at least consulting with, a lawyer. Read on to learn more about why it is usually better to hire an attorney than to go at it alone if you want to successfully defend against foreclosure.
Foreclosure is the legal process that the lender (or a subsequent owner of the loan) uses to sell a home and pay off the debt if the homeowner doesn’t make the mortgage payments.
Depending on the state you live in and your circumstances, the lender must either:
- take you to court in what is called a judicial foreclosure, or
- follow certain out-of-court procedures (as set out by state law) in a nonjudicial foreclosure.
(For more information about the difference between judicial and nonjudicial foreclosures, and the procedures for each, see Will Your Foreclosure Take Place In or Out of Court?)
Why You Should Hire an Attorney
While you can defend against a foreclosure without a lawyer, it is difficult. Unlike making a claim in small claims court, for example, foreclosure defense is simply not something that most homeowners can tackle on their own.
Attorneys Have Special Skills to Fight Foreclosure
Good foreclosure attorneys have years of training and extensive knowledge about the law. They also know how to apply it in the proper way in court documents and during trial.
Foreclosure Law Changes Quickly
Foreclosure law is quickly evolving. Courts decide new cases every month that could help with your case, and the federal government, as well as individual states, continue to pass new laws designed to protect homeowners. For example:
- There are new federal mortgage servicing rules effective as of early 2014.
- Rhode Island implemented a state-wide foreclosure mediation program late last year.
- Florida recently changed its foreclosure laws.
- California, Nevada, and Minnesota each passed a Homeowner Bill of Rights in recent months.
If the foreclosing party violates any of these laws, you might have a defense to the foreclosure. In addition, certain states have pending foreclosure legislation (for example, Colorado’s House Bill 14-1295) that, if passed, will further protect a homeowner’s rights during the foreclosure process.
It's almost impossible for a nonlawyer, or even a lawyer practicing in a different area of the law, to keep abreast of the rapid changes in the foreclosure field. Only an experienced attorney will be up to date on all of the defenses and legal nuances that can make or break your case.
Foreclosure Defenses Are Complex
Many foreclosure defenses are complicated. To successfully defend your case (by claiming that the foreclosing party didn’t follow state foreclosure procedures or that the mortgage servicer didn’t comply with federal mortgage servicing rules, for example), you’ll need to find, read, and understand complex documents such as statutes and court decisions. Attorneys go to law school for three years and review these types of documents every day in the course of practicing law to develop the skills needed to effectively do this. (To get an idea of the dizzying array of defenses and what is involved in each one, visit Nolo's Fighting Foreclosure in Court topic page.)
You Have to Understand and Comply With Detailed Court Filing Procedures and Rules
In the course of defending against the foreclosure, you will need to respond quickly in writing (in the correct format) to documents you receive from the lender’s attorney, file certain paperwork (such as motions) with the court, meet deadlines, and maybe even handle a trial. Even if you have a valid defense, if you mess up, the court won’t give you special dispensation just because you aren't a lawyer. And, to top it off, it could potentially take months or even years for a court to resolve the foreclosure.
Under most circumstances, you have very little chance of successfully defending against a foreclosure unless a skilled foreclosure attorney assists you. (Learn about what type of lawyer can help with your foreclosure, how to find a good foreclosure attorney, and more in Nolo’s article Hiring a Foreclosure Attorney.)
What to Do if You Cannot Afford an Attorney
If you think you have a defense to the foreclosure, but can’t afford an attorney to represent you throughout the entire process, you should at least schedule a consultation with one to help you decide what to do, as well as to explain to your legal rights and responsibilities. A legal aid office may be able to help you for free if you meet certain criteria. (You can find a list of various legal aid programs on the Legal Service Corporation's website.)