Just because you want to hire a lawyer to help you with foreclosure doesn't mean an attorney will take your case. Foreclosure lawyers consider several factors when deciding if they can help you stop a foreclosure, get a mortgage modification, or assist you another way when you are facing foreclosure. Read on to learn more about the criteria that foreclosure attorneys use when deciding whether to accept a case.
How a Lawyer Will Decide Whether to Take Your Case
In general, there are certain things that a foreclosure lawyer will look for when deciding if a case is worth taking. These factors vary depending on what you want to accomplish.
What the Lawyer Will Look For If You Want to Fight the Foreclosure
If you think you have a defense to the foreclosure, and you want to keep your home by fighting the lender in court, you will need a skilled lawyer to assist you. However, a lawyer will not accept you as a client unless there is a valid reason to believe the foreclosure is wrongful.
Lawyers can’t file frivolous suits. Before helping you respond to a foreclosure complaint in a judicial foreclosure (where the lender files a lawsuit in state court in order to foreclose the home) or filing a lawsuit to stop the foreclosure in the case of a nonjudicial foreclosure (where the foreclosure takes outside of the court system), a lawyer must evaluate your situation to ensure that there is reasonable evidence (or a reasonable likelihood that evidence will be found) to support your claims.
This means that if you want to fight the foreclosure in court, the main thing that a lawyer will look for when deciding if your case is worth taking is whether you have any valid:
- defenses to foreclosure (for example, you’re not actually behind in payments)
- affirmative defenses (reasons why the court shouldn't let the lender foreclose), or
- counterclaims (claims that the lender has violated other laws).
When you can fight a foreclosure in court. Some legitimate claims for fighting the foreclosure in court include:
- The loan servicer didn’t follow proper foreclosure procedures. In both judicial and nonjudicial foreclosures, the foreclosing party must strictly adhere to state-specific procedures. (Learn more about the general foreclosure laws and procedures in your state in Nolo’s State Foreclosure laws area.)
- Your loan servicer made a significant error with your account. Loan servicers (the companies that manage mortgage accounts) often make serious errors when it comes to homeowners’ accounts such as misapplying payments, failing to credit funds, or charging unreasonable and non-allowable fees.
- Your loan servicer violated federal mortgage servicing rules. Federal rules effective as of January 10, 2014, set various requirements and deadlines for how servicers must work with customers who want to avoid a foreclosure. (Learn more about federal mortgage servicing rules.)
- The Servicemembers Civil Relief Act (SCRA) protects you from foreclosure. Active military servicemembers have certain protections against foreclosure and special rights under the SCRA. (See our article on Legal Protections for America's Military: The Servicemembers' Civil Relief Act for more details.)
(Learn more about different defenses to foreclosure in Nolo’s Fighting Foreclosure in Court area.)
What the Lawyer Will Look For If You Want a Mortgage Modification
If you want to hire a lawyer to help you get a mortgage modification (that is, a change to the loan terms to make the mortgage more affordable), the lawyer will look to see if you will likely meet the eligibility requirements for one. Depending on your situation and circumstances, there are several potential loan modification programs you might qualify for, such as the government’s Home Affordable Modification Program (HAMP) or a proprietary (in-house) loan modification.
Typical modification criteria. Each mortgage modification program has its own criteria that you must meet in order to get your loan modified, though most require that:
- you have experienced a hardship that has caused you to fall behind in payments (or you are at risk of imminent default), and
- you can now show that you now have enough steady income to make the payments under a modified loan.
So, for example, if you’re unemployed and have no current sources of income, you may not be able to get a modification even with a lawyer's help since you won't be able to make the modified payments. A lawyer may not agree to represent you in this situation unless there are certain other circumstances that could influence the lender to provide a modified loan. (Learn more about mortgage modifications and eligibility criteria for one in Nolo’s Alternatives to Foreclosure area.)
Other factors the attorney will evaluate. A lawyer will also evaluate your situation to determine if there are other factors that could persuade the lender to give you a modification. For example, if the lender is dual tracking your loan (pursuing a foreclosure and a loan modification at the same time) in violation of new federal and other mortgage servicing rules or has committed some other violation of the law, the attorney could use this violation as leverage to convince the lender to provide a modification.
The Bottom Line
Ultimately, when deciding whether to take your case, a foreclosure lawyer will:
- examine your goals
- review the facts of your situation in light of those goals
- determine how strong your case is, and
- make a decision about whether to accept you as a client.
Once the attorney decides to take you on as a client, he or she will point out the likelihood of successfully defending against a foreclosure or obtaining a loan modification, as well as the weaknesses in your situation that could reduce your chances of succeeding. Keep in mind that no attorney can promise to stop the foreclosure or to get you a mortgage modification, even if you have a strong case.