Do I need an attorney for a foreclosure? | evident

Wondering "Do I need an attorney for a foreclosure?" Then read on for everything you need to know about when to hire a foreclosure lawyer.

evident Editorial Team
November 28, 2023
House with foreclosure sign

If you’re facing foreclosure, it can be a stressful and intimidating experience. Foreclosures can play out several different ways, but it can be tough to know what options are available to you, much less which of those options is best for your circumstances.

A key question many people have is: do I need an attorney for a foreclosure?

A foreclosure attorney can help you navigate the process and help fight for the best possible outcome, but it doesn’t always make sense to hire a lawyer if you don’t plan on fighting the foreclosure.

This article covers what you need to know about whether to hire a foreclosure attorney and the scenarios where legal help can be most valuable.

Key Takeaways

When you probably don’t need a foreclosure attorney

In some situations, it’s pretty clear you don’t need a foreclosure lawyer.

For instance, if you just want to remain in the home during the foreclosure process, you probably don’t need to hire a lawyer. You still own the property and can remain in your home up until the foreclosure sale is completed and the new owner takes title to the property.

Also, if you don’t have any defenses to the foreclosure, then there is likely no need to hire a lawyer. For instance, if you simply can’t afford your mortgage going forward and you’re behind on payments, then it probably doesn’t make sense to spend effort (or money) fighting the foreclosure.

Intermediate options when facing foreclosure

There are two intermediary options short of hiring a foreclosure attorney for a full-blown legal fight that you should be aware of.

First, the U.S. Department of Housing and Urban Development (HUD) sponsors housing counseling agencies that can speak with you free of charge. Speaking with a HUD-certified counselor can be a great first step in assessing your situation.

Second, loss mitigation applications, discussed more below, are a way to seek alternative outcomes to a foreclosure sale that do not rely on outright contesting the validity of the foreclosure.

Loss Mitigation Application

If you want some extra time in the home before the foreclosure is finalized, one option is to submit a loss mitigation application to your loan servicer.

Congress passed federal laws following the 2008 financial crisis to protect homeowners, including by requiring loan servicers to assist borrowers who are having difficulty making mortgage payments.

A loss mitigation application requires the loan servicer to evaluate whether you qualify for any loss mitigation options such as loan modification, long-term special forbearance, or pre-foreclosure sales.

Be aware that there are important deadlines associated with filing a loss mitigation application. You must file the application either before the foreclosure process starts or more than 37 days before a foreclosure sale.

The loan servicer is generally not required to consider more than one loss mitigation application, though, unless you catch back up on your payments in between loss mitigation applications. But by law, your loan servicer must consider a valid loss mitigation application, which can extend the amount of time you are able to remain in the property.

When to consider hiring a foreclosure attorney

So, "Do I need a lawyer for foreclosure?" you ask. Well, if you want to fight your foreclosure, it can be critical to have a foreclosure lawyer on your side to help you navigate the process and fight for the best possible outcome.

But how to fight a foreclosure? The question of whether or not to fight your foreclosure often comes down to whether you have a viable defense.

Some viable defenses to foreclosure include:

  • Your loan servicer failed to follow procedural requirements
  • Your loan servicer made a significant mistake with your account
  • The entity foreclosing can’t prove they actually own your loan

If you have a viable defense, it probably makes sense to consult with a foreclosure lawyer and discuss your options.

Another scenario in which it might make sense to hire a foreclosure attorney to assist you is if you’re an active military servicemember. The Servicemembers Civil Relief Act (SCRA) provides protections to active duty servicemembers, including protections related to non-judicial foreclosures and against default judgments (which come up in the context of judicial foreclosures).

Additionally, if the loan servicer is “dual tracking” -- that is, foreclosing while a valid loss mitigation application is pending -- you should act quickly. Federal laws prohibit dual tracking, and it is far more challenging to get your home back after a foreclosure sale is completed. So in this scenario you should consult a foreclosure attorney immediately.

Why you need a foreclosure attorney

The reasons why you need a foreclosure attorney are simple: because the process can be complicated and the stakes are high. 

Many people do not know how to fight a foreclosure. When facing foreclosure, you’ll have to navigate the relevant laws and potentially a court process, both of which can be complicated. 

The relevant laws depend on where you live and can change from time to time. Meanwhile, even if you have a valid defense to foreclosure, it is crucial that you meet the court’s deadlines and file the correct paperwork in the right format. 

A good foreclosure attorney will be familiar with the applicable laws and have experience navigating the foreclosure process, both inside and out of the courtroom. Additionally, an experienced attorney will be able to help you understand your options and advise you on the best course of action. 

It's also important to understand how much a foreclosure lawyer costs, and if you are facing foreclosure the reality is that you may not be in a great position to incur additional costs.

But if you plan on fighting the foreclosure, having an experienced foreclosure lawyer on your side can be a crucial resource during a challenging time. 

The final word on hiring a foreclosure attorney

So, do you need a lawyer for a foreclosure? The question of whether to hire a foreclosure lawyer will depend on your particular situation and where you are in the foreclosure process.

There are a number of situations where it probably does not make sense to hire a foreclosure attorney, as well as intermediate steps you can take short of hiring a lawyer and fully contesting the foreclosure process.

When deciding whether to hire a foreclosure attorney, two questions you should ask yourself are:

  • First, whether you intend to fight the foreclosure
  • Second, if you do plan to fight the foreclosure, whether it makes sense to hire a foreclosure lawyer or to seek out other resources

The second question often comes down to your financial situation. As noted, if you are facing foreclosure you may not be well-situated to pay a foreclosure lawyer's legal fees.

But if you have a viable defense and want to fight the foreclosure, having an experienced foreclosure attorney on your side can be a tremendous help.

If you do speak with a lawyer, here are the key questions to ask a foreclosure lawyer when you first meet.

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