FORECLOSURE DEFENSE: Fundamental . . . and Exciting
More by accident than anything else, this firm stepped into the spotlight in late 2008 by being one of the first to offer effective foreclosure defense strategies. It has been a whirlwind since then, and we have seen several different evolutions in the industry.
I have seen judges go from paying attention to my arguments to ignoring my arguments to paying attention again. We have had success on appeal and received media attention. We’ve seen scandals and been at the forefront of developing new techniques. It has been a wild ride, and foreclosure defense has turned out to be a fascinating area of practice. ~ J. Harrington
The perspective we have gained from this experience puts us in a position to offer some straight talk regarding foreclosure defense.
First, you can defend your own suit pro se. But let’s be honest – that doesn’t work well. We have had some rather sophisticated clients come to the office after they have done their best with the lawsuit looking for us to undo the damage. Sometimes we can, and sometimes we cannot. The reality is that even an actual attorney may not be able to get a good result unless he/she has some specific training in this specialized field of law. There are particular affirmative defenses, important deadlines, and complex discovery practices involved in properly contesting a foreclosure suit.
Courts are still overloaded with foreclosures, so if you give a judge an excuse to get your case off his docket—like making some mistake in the suit—he will almost certainly take it.
Now, the concern is usually money. You would like to have an attorney represent you, but you are not sure you can justify the expense. There are two main reasons the money you spend on a defense lawyer is the best investment you can make. First, without one, you will probably lose the suit by default and be out of the house within a few months. Compare that with a properly contested suit that will almost surely linger on for a year or more. At worst, with a good attorney you will get the benefit of several additional months without making mortgage payments.
Times are changing . . . in a good way. Enough bad judgments have been overturned by the appeals court that judges are much more likely to rule in the homeowners favor when they should. That is why HLA has won several trials and appeals.
You may be wondering what it means to “win” a trial and what the implications are. The most obvious kind of win is to go through the trial and receive a judgment in the homeowners favor. That happens sometimes. However, lately, it has been more common for the bank to bailout when they see things are not going their way. For example, there have been several occasions in which the lender’s attorney has asked for a recess in order to talk with her client and, when the attorney comes back to the courtroom, she announces the bank is taking a voluntary dismissal. We also consider that a “win.”
So, what does it mean if you win the case? It does not mean that you will necessarily get a free house. Sorry. So far, we have not seen any of the cases we have won come back. However, presumably, they will.
In other words, I think we have to assume that, after losing the trial, the bank gets to work trying to fix the defects of its case. We are betting the lender will come back with a new case at some point in the future, perhaps, as a different plaintiff. ~ J. Harrington
The cases we have won have not yet reappeared, so those clients are somewhat in limbo. One thing we have attempted is to go on the offensive and file actions for quiet title or dissolution of lien. We have several of those pending, so we will keep you posted with the results. if we were able to prevail on one of those actions, then we might literally be talking about clients getting free houses. As soon as that happens, it will be big news.
HLA does not make false promises nor create unrealistic expectations, however. Instead, we like to focus on the leverage that is invariably created through effective foreclosure defense.
If your long-term strategy is to work something out with the bank, such as loan modification or short sale, then having a strong defense gives you much better leverage in your negotiations. In the case of a loan modification, any small improvement in the terms will equal thousands of dollars of savings over the life of the loan. As for short sales, the extra leverage may allow you to avoid a deficiency judgment and/or receive cash for keys– sometimes several thousands of dollars.
The same is true with appeals. We do when some trials, but we do not win them all. whenever we lose the trial that we think we should not have lost, then we talk to our client about appealing the decision. Our main office is in Palm Beach County, which has a particularly good appellate court. It is the 4th DCA, and the panel of judges here have led the state in establishing case precedent related to foreclosure.
I think homeowners in Palm Beach County are fortunate to have a panel of appellate judges who have been very fair and very consistent in ruling on foreclosure cases. The 4th DCA has not been shy about reversing bad trial court decisions. ~ J. Harrington
The result of filing a meritorious appeal is always great leverage in dealing with the lender. The lender knows the case could be reversed, which would be somewhat disastrous. So, whether you actually win a case outright or simply improve your ability to negotiate successfully with your lender, a good defense attorney is worth having at almost any price.
At HLA, we offer payment plans that create appropriate incentives for the law firm at very reasonable rates to the client. The initial consultation is free, so call to find out what an experienced foreclosure defense attorney can do for you.