Does the Attorney Only Have a "Hammer" - Or Do They Have All of the Tools Necessary to Evaluate and Address Your Problem?
Have you ever heard the expression, "when you have a hammer, everything looks like a nail?" This expression really comes to life with attorneys who claim they can help with foreclosure problems. If you go to see a bankruptcy attorney to help you with your mortgage, chances are pretty good that they will recommend bankruptcy to solve your problem. If you go to see a trial attorney, chances are pretty good that they will want to keep your case in litigation.
Foreclosure is not a "one-size-fits-all" form of law. Foreclosure is a complex animal. For an attorney to master foreclosure defense, they should have a working knowledge of several legal disciplines, including civil litigation, lending and debt collection law, the uniform commercial code, bankruptcy, contract law, securitization, and negotiation. If the attorney you are consulting with is not familiar with all of these practice areas, he or she may not be aware of options or legal defenses which may offer the best solution.
Is the Attorney Familiar With Current Foreclosure Defense Law?
Mortgages may not be new, but the modern practice of foreclosure defense is still in its relative infancy. This is because most modern legal strategies in foreclosure defense incorporate recent progressions in the mortgage industry, such as securitization or new foreclosure alternative programs. As a result, having 30 years of legal experience does not make an attorney more qualified to handle a foreclosure defense unless they are familiar with the recent progressions in the law.
On the flip side, many attorneys have recently hopped on board the "foreclosure defense bandwagon" as a result of the overwhelming demand of homeowners behind on their payments. For these attorneys, foreclosure defense may be more of a "flavor of the week" than a true focus of their law firm.
Is the Attorney Promising a Result?
Attorneys are prohibited under their professional rules from promising a result. An ethical attorney will not guarantee they can obtain a specific end result, such as a modification or a deed-in-lieu of foreclosure. But with that said, an attorney should have some history of prior success. If they do not have any past results that they can discuss with you, they may not have enough experience in the area.
Will the Attorney Help You With the Solution You Are Looking For?
Many homeowners who are behind in their payments want to keep their home. Often, the best option in this circumstance is to request a loan modification from the lender.
When a homeowner hires an attorney to assist them with their mortgage payments, they often assume that the attorney will assist with every aspect of their late payments. This is not always the case. Many attorneys will not assist with a modification.
There are many reasons for this. First of all, modifications are challenging. Even attorneys have limited leverage in requesting a modification. Second, modifications are time consuming. Third, some attorneys are philosophically opposed to modifications, under the premise that lenders are not the true owners of mortgage loan. Finally, there are several state and federal laws which regulate modification advocacy, and some attorneys do not want to take on the burden of complying with these law.
How to Does the Attorney Structure Their Fee Arrangement?
As a result of the strain on our economy, many consumers who have never used an attorney in the past are turning to foreclosure defense attorneys. For these consumers, their only prior exposure to attorney billing may be from personal injury commercials where a lawyer proudly proclaims, "We don't charge you a fee unless we recover for you!" This arrangement, called a "contingent fee", is not typical for most law firms. More often, lawyers bill on an hourly basis.
The challenge with hourly billing for foreclosure cases is that a consumer may be unprepared for the fluctuation in fees. Some months a case may be at a standstill, while other months may be very contentious. Often, consumers facing foreclosure are not prepared for legal bills that may be several thousand dollars.
To alleviate the lack of predictability, some foreclosure attorneys offer a flat monthly fee. This flat fee can prepare a consumer for their monthly attorney's fee.
Additional resources provided by the author
That’s It! You are now an educated consumer prepared to begin your “attorney shopping.”