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 to 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.
Read on to learn more about when it's appropriate to hire an attorney to help you in a foreclosure and what types of matters you can reasonably expect to handle on your own.
Below are some situations where you should consider hiring, or at least consulting with, an attorney.
If you think you have a defense to the foreclosure, and you 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 the rules of the court, and submit the appropriate paperwork. It’s unlikely that a homeowner could mount a successful defense to foreclosure without an attorney.
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.
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.
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.
In the following situations, you might not need a lawyer’s assistance.
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 generally may remain in the home until this time. In some states, you may be able to stay in the property through the expiration of a post-sale redemption period (if state law provides one) or until some other action, such as ratification of the sale, occurs. (Learn when you have to leave the property in a foreclosure.)
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.”
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. Again, 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 already evaluated a loss mitigation application from you, you can't submit another application just to stall the foreclosure. But 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.
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.
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 do 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. 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 to 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. (To find out what to expect from a foreclosure lawyer, see Foreclosure Attorneys: Why You Might Want to Hire One, What to Expect, and When to Fire One.)