The best way to prepare a strong foreclosure case is to understand what foreclosure is, and how the foreclosure process is conducted. Foreclosure is the legal process in which a lender, such as a bank, takes possession of a home because the homeowner has failed to keep up with their mortgage payments. After a specified number of missed payments, the lender will be permitted to seize or take the home from the homeowner and sell it in order to recover the money owed on the mortgage.
There are two types of foreclosures, judicial and nonjudicial foreclosure sales. A foreclosure by judicial sale requires court intervention in order to sell the mortgaged property. Unlike nonjudicial foreclosures, it is available in every state.
A nonjudicial foreclosure, which is also known as “foreclosure by power of sale,” does not require the intervention of a court. Alternatively, the lender is allowed to sell the mortgaged property directly to recover any money owed. Not every state permit non judicial foreclosures.
Regardless of the type of foreclosure process, once foreclosure is complete, the home belongs to the lender. Depending on the laws of the state in which the foreclosure is occurring, there are certain exceptions that may apply to allow the homeowner to reclaim their home.
Understanding the foreclosure process and the legal steps that are involved in the process may help you decide whether an attorney is necessary for help. Generally speaking, the foreclosure process is as follows:
- The lender contacts the homeowner to determine why no payments have been made;
- The lender sends a notice of default, demanding payments;
- The lender files a foreclosure complaint with the court;
- The homeowner receives a copy of the complaint with a period to answer;
- The lender’s attorney files a motion for a default judgment;
- If the court grants the motion, an order of sale will be provided to a sheriff;
- An appraisal of the home would be made by the sheriff;
- The home would be advertised for either a foreclosure sale or public auction;
- The home is sold, and the court enters a judgment of sale and orders a new deed to the buyer;
- The buyer becomes the owner, and has the right to ask the sheriff to evict the former homeowner in possession; and
- A deficiency judgment goes against the prior homeowner for the difference of the foreclosure sale, as well as the amount still owed by the prior homeowner.
At any time prior to a foreclosure sale, the homeowner or mortgagor may redeem the property by paying the amount due. This is known as the right of redemption. If the mortgage contains an acceleration clause, the full balance on the mortgage must be paid in order for the homeowner to redeem.
What Documentation and Questions Should I Gather Before I Meet with My Foreclosure Lawyer?
A legal consultation is an initial meeting with an attorney taking place before you decide whether to hire that attorney to represent you in your particular legal matter. The attorney will also use the consultation in order to determine if they can legally and competently represent you based on the information that you provided them.
It is important to note that an initial legal consultation does not mean that the attorney is officially representing you, or has taken on your case. In general, for an attorney to legally represent you, there must be a written representation agreement signed by both you and the attorney. Otherwise, you must be able to prove that through their words or actions, the attorney consented to representing you in your foreclosure.
Before the consultation, you should ask whether the consultation itself is free; they often are. You should also ensure that you properly prepare for the consultation by gathering any and all documentation that is relevant to your case. It is important to bring every document you have for the attorney to review, as they will be able to properly determine which documents are relevant, and which are not. Documents that you should bring with you may include any of the following:
- Contracts: If your claim arose from a contract dispute, then you should bring copies of the contract and any documents further explaining the contract. In cases involving foreclosure, you should bring copies of your mortgage agreement, as well as any and all contact between you and your lender;
- Police or Accident Reports: If possible, you should bring any police or accident report that was created as a result of the incident you were involved in. In terms of foreclosure, you should provide a copy of any police reports related to threatening behavior on the part of either you or the lender;
- Property Deeds: If your claim involves a property dispute, you should be sure to bring a copy of the deed or any documents relating to the property, such as an oil and gas lease;
- Employment Records: If your foreclosure claim involves the fact that you are unemployed, you should bring all of your employment records. Examples of such documentation could include your employment contract, employment agreements, or timesheets; or
- Other Documents Providing Evidence of Damages: Other important documents to bring include any evidence of damages, such as medical records or expenses, or any warranties or letters created by the party you are trying to sue.
Another element of being prepared for your consultation with your foreclosure lawyer is being aware of what questions you may have. In terms of foreclosure, you may want to ask what your options are, or what is considered to be the usual remedy for such disputes. Questions that you should ask during a legal consultation may include questions regarding the attorney’s background and qualifications, as well as specific questions regarding your case. At your consultation, you should also discuss fee structures as well as legal claims and facts.
An initial consultation will generally always include a discussion of the fees that an attorney may charge in order to represent you regarding your legal dispute. Attorney fee arrangements may be based on a contingency fee, a flat fee, or hourly fee basis. Additionally, a consultation will always include a discussion of the legal facts and your legal claims. It is absolutely crucial to be honest when telling the attorney about your particular case. This is because lying about the facts or circumstances surrounding your case will lead to criminal sanctions or other civil penalties.
Another reason to be completely honest during a legal consultation is that legal consultations will always be confidential. What this means is that what you discuss with an attorney will not be shared outside the meeting room, and cannot be used against you later in a court of law.
Although simply having an initial consultation with an attorney does not create an attorney-client relationship, as that is typically done through a representation agreement, every communication shared in the initial consultation is privileged and confidential, just as if the attorney-client privilege had formed. Thus, it is important to be open and honest in an initial consultation, so the attorney can perform a proper evaluation of the facts and legal options for your case. .
What Makes a Foreclosure Case Strong? What Makes it Weak?
Once again, the best way to make a strong foreclosure case is to have documented evidence that provides a history of payments and dealings regarding the property in question. For example, if the buyer of the property has strong evidence demonstrating payments were timely made and in the correct amount, then the foreclosure case against them will be weak.
However, if the seller of the property has documented evidence of missed payments and required notifications to the buyer, they will have a strong foreclosure case against that buyer.
When Do I Absolutely Need a Lawyer for a Foreclosure Issue?
If you are facing foreclosure on your home, you should contact a local real estate lawyer immediately. An area attorney will be best suited to explain your state’s specific laws regarding the matter, as well as how those laws may affect your case. In general, the earlier in the process that you hire a lawyer, the more likely your chances are of avoiding a complete foreclosure sale.
A skilled and knowledgeable foreclosure lawyers can help you determine what legal options are available to you based on the specifics of your case. An experienced and local real estate attorney can provide further legal counsel about your matter, and ensure that your rights are protected throughout the entire foreclosure proceeding.
Additionally, a lawyer can also assess whether or not you will be able to reclaim your home, and will guide you through that process as well. Finally, an attorney can also represent you in court, as needed, should any additional issues related to foreclosure arise.