Do I Need a Foreclosure Attorney?

If you're facing foreclosure, hiring a lawyer might be a good idea.

If you’re a struggling homeowner facing foreclosure, you’ll need to decide not only if it's worth your time to fight the foreclosure, but also if it's worth paying an attorney to help you. In some cases—say you have a valid defense to the foreclosure and want to keep your home—you’ll need a lawyer to assist you. In other instances, such as if your goal is to stay in the home through the foreclosure process or just to gain some additional time before the bank completes the foreclosure, it often makes sense to go at it alone. (Read about when you might not need to hire a foreclosure attorney.)

Read on to learn more about when it's appropriate to hire an attorney to help you.

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 believe you have a defense to the foreclosure, and you want to keep your home, you likely will need a skilled attorney to help. In most cases, you'll have to raise the defense in court, either by filing your own lawsuit (if the foreclosure is nonjudicial) or responding to the lender's lawsuit (if the foreclosure is judicial).

Each foreclosure case is different and has complicated nuances that can ultimately make or break the case. In view of this, it's unlikely that a homeowner could mount a successful defense to foreclosure without an attorney. For example, some defenses that probably require the assistance of an attorney include:

  • The foreclosing party didn’t follow proper foreclosure procedures. In a foreclosure, the foreclosing party must strictly follow state-specific procedures, with few exceptions. A foreclosure attorney familiar with your state’s particular foreclosure requirements can inform you if a procedural mistake is significant enough to warrant a dismissal of the case.
  • The foreclosing party can’t prove it owns your loan. If the foreclosing party can't prove it owns your loan, then it doesn't have standing (the legal right) to foreclose. For example, if your mortgage loan was bundled and securitized, determining if the foreclosing party actually owns the loan can be a challenge to say the least. An attorney can help you figure out if you have a defense based on the fact that the foreclosing party can't prove that it owns your loan. (Learn more about the securitization process.)
  • Your loan servicer made a serious error with your account. Loan servicers—the companies that manage loan accounts—often make serious errors when it comes to managing homeowners’ accounts like misapplying funds, failing to credit payments to the account, or charging unreasonable and nonallowable fees. An attorney who is familiar with reviewing servicer payment histories, which can be difficult to interpret, can help you figure out if the servicer made a serious error with your account that amounts to a foreclosure defense.

You’re in the Military

Active military servicemembers have some special protections against foreclosure and have certain rights under the Servicemembers Civil Relief Act (SCRA). Among other things, if you took out your mortgage before going on active duty, the servicer cannot foreclose unless it gets a court order or a waiver from you. (To learn more, see Foreclosure Protections & the Military: When a Servicemember Gets a Mortgage Before Active Duty.)

The SCRA is extensive and complex. If you’re on active duty and facing foreclosure, an attorney can inform you about all of your rights under the SCRA and help ensure that the servicer complies with this law. (See our article on Legal Protections for America's Military: The Servicemembers' Civil Relief Act for more details.)

You Need Help With a Loan Modification Because the Bank is Stalling or Dual Tracking

An attorney can help you with the loan modification process if the bank is stalling or "dual tracking" your loan (pursuing a foreclosure and a loan modification at the same time) in violation of federal and, in some cases, state laws. (Learn more about laws that prohibit dual tracking.)

Because it is very difficult to get your home back after a bank completes a foreclosure, you want to deal with this type of legal violation before the sale. Having an attorney on your side gives you a better chance of getting results before the sale takes place.

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

It's a good idea to learn each step in the foreclosure process so you aren’t caught off guard at any point. If you've done your homework on the topic, but still have questions, an attorney is a good resource. (Learn more about the general foreclosure laws and procedures in your state in Nolo’s State Foreclosure laws area.)

Also, an attorney can tell you about about federal laws and state laws that can protect you while you’re in foreclosure.

Questions to Ask an Attorney—If You Decide to Hire One

When picking an attorney to represent you, you should speak to several different lawyers to get more than one perspective and learn about all of the options available to you. Below are a few questions you should ask an attorney you're considering hiring.

  • What course of action do you recommend?
  • How much experience do you have representing homeowners facing a foreclosure in court (or in filing bankruptcy, or in getting a loan modification, etc.)?
  • Have you taken any continuing legal education courses about laws and strategies in handling foreclosure matters?
  • How much will it cost to hire you?

Be sure to ask as many questions as you need to ensure that you’re comfortable about your hiring decision.

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