When Do You Need an Attorney?

By Andrew J Thompson

When a bank or your lender threaten you with foreclosure, it can get very uncomfortable in a hurry.  I’ve represented dozens of homeowners, borrowers and private lenders in mortgage protection and mortgage fraud cases, very few of whom have hired me in the early stages following a claimed default.  Usually, they don’t need to at this stage.  But that can change in a hurry and it can change with profound implications.

If you hire an attorney before you have the need for legal defense, you will expend badly needed financial resources trying to protect against claims that aren’t yet ripe.  But if you wait too long, the consequences can be dire.  In my experience, I have learned that I can help just about any homeowner if they come to me early enough.  But I have also had plenty of cases where it’s too late, or there just aren’t the resources at hand to defend the case in the way it needs defended. So how exactly does this play out, and what are the factors that dictate when an attorney can and should make a difference in your case?  Below is a summary of what is likely to happen at various stages of proceedings and how it is that an attorney should help, or alternatively may not or may not be able to help  under the circumstances.

DEFAULT/PRE-FORECLOSURE

Until the bank has indicated it intends to move ahead with foreclosure proceedings, you generally do not need an attorney working for you.  If you are considering a loan modification, or have applied for one, you know there is much paperwork involved, and hiring an attorney will usually do little for you except increase the cost of defending yourself.

There are exceptions, however.  If your claims against the lender are so clear that you have a suit to file against it (them), then you should hire an attorney sooner rather than later to pursue your rights, rather than sleeping on them until the bank establishes the upper hand against you.  Pre-emptive strikes can be very important in foreclosure litigation because the lender often takes advantage of the procedural tools (Trial Rules) at its disposal that enable it to move quickly and short circuit your rights of defense against foreclosure.  I have seen this happen to an unsuspecting homeowner many times over, so don’t let it happen to you.

NOTICE OF INTENT TO FORECLOSE

At this juncture, before a case is filed against you, but upon seeing a pre-foreclosure intent letter, it is wise at least to consult with an attorney to know your rights and help you decide on your own next steps, while wisely considering what to do more immediately.  Most typically I would say this is generally too early to hire counsel, and any earlier makes little sense except in the situation where you need to find an attorney to prosecute your own claims against the lender,

RECEIVING A SUMMONS

If things ever get to this point, it is time to hire counsel and to be as aggressive as you can defending your rights – whether as to ownership of the property, for a proper accounting of the loan, or otherwise.  The Summons means this is serious buisness.  You’ve been sued!  But chances are very high that if you use the special rules to your advantage.  You should not try to Answer a Complaint on your own, and you should not to begin staging a defense to the suit without the assistance  of counsel.

SETTLEMENT CONFERENCES/MEDIATION

In some ways the structure of a settlement conference lends itself to handling it without the aid of counsel, but the problem is the lender will take advantage of the rules if you don’t have someone on your side who knows what to look for.

POST-JUDGMENT PROCEEDINGS

Whether   it’s Default, Summary Judgment, or even a judgment at trial – in a foreclosure proceeding, the bank is going to want to  get the property sold and you out of the house – probably as soon as it can.  While it’s too late usually at this stage to make a difference, an effective attorney may still be able to employ a strategy that will buy considerable time in your favor.

All things considered, don’t delay.  There are so many good, viable defenses to a foreclosure action available to you, make use of them in the best way you can.  If you’d like the opinion of a seasoned experience mortgage defense attorney or may need actual representation, please call (317) 564-4976 to set an appointment speak with the author.

Your Indiana Attorney – Foreclosure Defense

Attorney Andrew Thompson of Thompson Law Office in Carmel Indiana briefly explains procedures to foreclosure defense.

Your Indiana Attorney – Fighting a Foreclosure in Court

Attorney Andrew Thompson from the Thompson Law Office in Carmel Indiana breifly discusses a situation where we was defending a client in court.

The Value of Quiet Title Actions

By Andrew J Thompson

(For more information on this topic, contact the author at andrew@businesslawindiana.com or by calling the Thompson Law Office at (877) 365-1776.)

Many homeowners have struggled with the large, national banks, trying to work out terms of a loan modification to save their home after they have fallen into default on a mortgage.  The process is laden with disruption and uncertainty as the banks fumble through mountains of paper, making a foregone underwriting decision on whether or not the homeowner qualifies for better terms and the opportunity to get out from under the problem.

The whole process, whether it is the loan modification consideration controlled by the bank, or foreclosure litigation within the court system, seems as if it is orchestrated from start to finish with the bank in charge of it all.   The courts often add reinforcement to this notion by deferring to the banks or their attorneys in how the proceedings in a foreclosure case unfold.

A “Quiet Title” action is one brought against all lienholders on the property in order to remove any liens that cannot be susbtantiated in a court of law, to address the order of priority of the liens that are valdily placed on the property, and to remedy any defects within a lien that is valid in and of itself, but where a mistake has been made in documentation or recording of the note.

Whenever there is a purchase money mortgage recorded against the property, any action to quiet title (other than foreclosure of the mortgage itself) can be very, very difficult.  The purchase money lender essentially has an extraordniary priority based on its consideration for lending the money that was used to buy the home.  This presents an interesting dilemma for homeowners when the bank’s actions have been so poorly managed, or even worse, and the homoewners have been left in a position rendering them unable to pay for the home they bought, because they unwittingly agreed to pay far more than its market value.  (This usally happens without a homeowner knowing, because of inflated appraisals, and other improper steps that the owner(s) could not have known about.)

When a homeonwer tries to take corrective action, the bank brings in an army of staff and of hired attorneys to defend its actions, however wrong they know they were.  And the basic defense, that most people accept is “you bought the house with this loan and agreed to pay it back, you either pay it back or lose the house”.

But in recent years, the terms of loans have become so oppressive, even to well-educated buyers, that once they go into default, it is difficult or nearly impossible to cure the arrearage and get it back on track.

Quiet Title actions are then a necessary tool for consideration, even if they are extremely difficult to prosecute.  The threat or reality of a quiet title claim forces the bank to think through the possibility that their own lien could be shown to be defective and removed – and in many cases, rightly so!

Banks are guilty of many errors in the lending process.  Many of these errors are much more substantive than their armies of attorneys will allow.  What if a note is dated far differently from the mortgage securing the note?  What if the notary signatures are on different pages than the signatures of the borrower?  What if signatures are not witnessed or attested?  Are these things important?

Consider the closing process itself.  Do the appraisals fully substantiate the market value of the home?  Was the homeonwer apprised of his rights?  Did the closing agent have proper authority to carry out the transaction that was done?

There are many more possibilities.  When the banks have failed in their duties, they created an economic distortion that many homeowners could not bear.  They need ot be accountable for their own actions and to the parites they misled.  This is the value of a Quiet Title action.