Do I Need a Foreclosure Attorney?

If you're facing a foreclosure, find out when hiring a lawyer is a good idea—and when it might not be necessary.

By , Attorney · University of Denver Sturm College of Law

If you're facing a foreclosure, you'll need to decide not only if you want to fight the foreclosure but also if it's worth paying an attorney to help you. Sometimes, hiring a lawyer is essential. For instance, if you have a valid defense against the foreclosure and want to keep your home, you'll likely need a lawyer's assistance.

But in some situations, you probably don't need to hire one. Say your goal is just to stay in the home (payment free) through the foreclosure process. In this scenario, it probably makes sense to go at it alone.

When You Should Hire a Foreclosure Attorney

Below are some situations where you should consider hiring, or at least consulting with, an attorney.

You Have a Defense and Want to Keep Your Home

If you think you have a defense to the foreclosure and want to keep your home, you'll likely need a skilled attorney to help. Some defenses that probably require the aid of an attorney include the following:

Each foreclosure defense is different, and every situation has complicated nuances that can ultimately make or break the case. And, you'll have to raise your defense in court. You'll need to file your own lawsuit if the foreclosure is nonjudicial or respond to the foreclosure lawsuit in a judicial foreclosure.

Either way, the process involves making a legal argument, filing documents with the court, following rules of evidence, and more. A foreclosure lawyer can help you formulate your arguments, navigate court rules, and submit the appropriate paperwork. It's unlikely that a homeowner could mount a successful defense to foreclosure without an attorney.

You're in the Military

Active military servicemembers have special protections against foreclosure, as well as certain rights, under the Servicemembers Civil Relief Act (SCRA). The SCRA is extensive and complex.

If you're a military servicemember, an attorney can inform you about all of your rights under the SCRA and help ensure that the servicer complies with this law.

The Servicer Is Dual Tracking

If you've applied for loss mitigation and the servicer is dual tracking (foreclosing while an application for a foreclosure alternative is pending), you'll want to deal with this legal violation immediately—before a sale happens. It's very difficult to get your home back after a foreclosure.

Having an attorney on your side gives you a better chance of getting results before a sale takes place.

You Want To Learn about Foreclosure Laws In Your State and Your Rights During a Foreclosure

It's a good idea to learn each step in the foreclosure process in your state. That way, you won't be caught off guard at any point. If you've done your homework on the topic but still have questions, an attorney is an excellent resource.

You Need Help With a Loan Modification or Getting Another Loss Mitigation Option

While you can apply for a loan modification on your own, in some instances (say you need help understanding your legal rights or the servicer violates the law), hiring an attorney just might make the difference between getting your mortgage payment lowered through a modification and losing your home to foreclosure.

You Want to File for Bankruptcy

If you want to file for bankruptcy to stall the process or keep your home, you should talk to a bankruptcy lawyer.

When You Probably Don't Need to Hire a Foreclosure Lawyer

In the following situations, you might not need a lawyer's assistance.

You Want to Live in the Home for Free During the Foreclosure

You probably don't need to hire an attorney if your goal is simply to live in the property throughout the foreclosure process. You legally own your home up until the new owner who buys it at the foreclosure sale gets title to the property. You can usually remain in the home until this time.

If your state's laws provide a post-sale right of redemption, you might be able to stay in the property through the redemption period or until some other action, such as ratification of the sale, occurs. (But if your plan is to live in the home throughout the foreclosure, you might have to get a lawyer to help you if the bank or servicer prematurely changes the locks or removes your personal property in the name of "property preservation.")

You Want to Get Some Extra Time to Stay in the Property

If your primary goal is to get a little more time to live in the home before the foreclosure is final, you can submit a loss mitigation application to the servicer. Federal law (and some state laws) prohibit dual tracking. So, you can live in the home for a while longer while the servicer reviews your application. In most cases, you'll also get some time to appeal the decision. You might even get a loan modification that makes your monthly payment more affordable or another alternative to foreclosure.

But be aware that if the servicer has already evaluated a loss mitigation application from you, you can't submit another application just to stall the foreclosure. However, under federal law, if you've brought your loan current at any time since submitting a complete loss mitigation application, and the servicer reviewed that application, the servicer has to perform another review if you apply again.

Most people don't need a lawyer's help in preparing a loss mitigation application. To get free assistance, contact a HUD-approved housing counselor.

You Don't Have Any Defenses to the Foreclosure and Want to Give Up the Home

If you don't have a valid defense to the foreclosure—say you stopped making your payments, have no intention of resuming them, and think the servicer has treated you fairly—then there's probably no reason to hire or consult with an attorney.

You Can't Afford Your Home, and You Don't Want to Keep It

Likewise, if you can't afford your house payments and don't want to keep your home, it might be a waste of time, effort, and money to hire an attorney to fight or try to delay the foreclosure. Instead, you can put that money towards finding somewhere else to live.

If You Decide to Hire a Lawyer

If you decide to hire an attorney to represent you, it's a good idea to speak to several different lawyers to get more than one perspective and learn about all available options. Here are a few questions you should ask when considering hiring a lawyer to assist you with foreclosure issues:

  • How much experience do you have representing homeowners in foreclosures, including how many court cases have you handled?
  • How much experience do you have in helping homeowners get loan modifications, including how many modifications have you obtained for clients?
  • Have you taken any continuing legal education courses about strategies for handling foreclosure cases or alternatives to foreclosure?
  • What course of action do you recommend?
  • How will you or your staff update me about the progress of the foreclosure?
  • How much will it cost to hire you, and what services do the fees cover?

If you can't afford to hire a lawyer to represent you throughout the entire process, consider scheduling a consultation with one to help you decide what to do, as well as to explain your legal rights and responsibilities. If you can't afford even one consultation with an attorney, a legal aid office might be able to help you for free if you meet certain criteria.

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