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Source of Title Blog

Pro Se Foreclosures
by Robert Franco | 2010/04/03 |

I wonder, with the extremely high foreclosure rate we are currently facing, how many homeowners represent themselves?  The courts, at least around here, attempt to get the homeowners involved and provide a simple fill-in-the-blank Answer to file.  But is that really sufficient and do homeowners actually benefit from it?

Source of Title Blog ::

Let's face it - if you are getting foreclosed on, you most likely can't keep up with your mortgage payments.  Can you really afford to hire an attorney to represent you?  Many know that they are in default on their mortgage and they probably figure that there isn't much an attorney can do anyway.  But that isn't necessarily true in all cases.

I think it is good that the court provides a means of response with their Pro Se Answer form.  It at least allows the homeowner to submit a written statement that will be considered an Answer in the case.  It allows the homeowner to indicate whether or not they intend to keep the home and explain the reason for their default.  The downside, of course, is that it gives the homeowner a sense that they do not need representation.

The biggest flaw with the Pro Se Answer form is that it doesn't provide the homeowner with any information about legitimate defenses to the action they may have - such as promissory estoppel, laches, and waiver.  Furthermore, it doesn't provide clear instruction for how to assert any counter claims against the lender that they may have.  What if the lender violated the terms of the agreement, or a consumer protection statute, with its collections practices?  Most likely the average homeowner isn't fully aware of his rights.

What it does do, is involve them in the case and allow them the opportunity to mediate their case through a conciliation process.  This gets the homeowner and the lender talking about a possible workout in the presence of a court representative.  Still, though, they go through the process without representation and this puts them at a disadvantage.

If there are legitimate defenses or counter claims that could be asserted, it could help the homeowner negotiate a fair and reasonable modification.  It is important to consider that even while the homeowner is in negotiations for a modification, his default is continuing to grow if full payments are not being made.  The lender may even agree to accept less than the full payments during the negotiation process, but if a modification agreement isn't reached the homeowner could be falling deeper into default.

There must be a better solution.  I am glad that the courts try to help homeowners with some basic do-it-yourself instructions.  But I think they need more than that.  I think they may need to have information that will help them decide if they should talk to an attorney, rather than attempt to represent themselves in a foreclosure case.

Best,
Robert A. Franco
SOURCE OF TITLE




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Categories: Foreclosures

677 words | 2247 views | 6 comments | log in or register to post a comment


Well, there's always the billboard outside the courthouse...

 
by Slade Smith | 2010/04/04 | log in or register to post a reply

Pro-Se foreclosures

This is a very interesting question.  I have done literally thousands of closings on properties here in Maryland that have been foreclosed upon. We generally are tasked with handling the out-sale from the Bank to the third party purchaser.  I can recall having seen only one time when there was a line item in the court docket that stated that the foreclosed party filed  exceptions to the foreclosure action. That particular foreclosure case went on for about 2 years and is a blog entry just waiting to be posted, now that you have reminded me of it.  (the foreclosed party claimed that he could not be foreclosed upon because his property was the home of carrier pigeons, who are or were at the time a protected species?)

What we generally see is the normal docket entry filings and then an order of court allowing possession by the bank.  I need to go back to some recent files to research this more. Thanks for making me think today.

Charlene

 
by CHARLENE PERRY | 2010/04/05 | log in or register to post a reply

He who represents himself has a fool for a client

Anyone that walks into court without an attorney to represent him/her is simply asking for trouble. The court sits as an impartial trier of fact (claims of equity) and law (claims at law). It is not there to offer legal advice to pro se parties. I have seen judges instruct pro se litigants in that manner on a number of occasions.

The Court in Connecticut issues a do it yourself instruction folder in divorce cases. Perhaps you are suggesting that something similar be done in foreclosure cases. My experience with the do it yourself divorces is that litigants often miss beneficial procedures that would help them, make agreements that are unwise and make mistakes that wind up costing them more money to correct at a later date.Foreclosure cases are much more difficult for a pro se litigant to understand than divorce cases. I see little benefit for a litigant to represent himself.

If the litigant can not afford a lawyer he/she should look into legal aid.

 
by Kevin Ahern | 2010/04/07 | log in or register to post a reply

Not in Joisey Kevin

Ironically, here in NJ, legal aid is "out of funds" for representing bankruptcy, foreclosures, employment/unemployment issues... but if you're a felon, the coffers are plentiful.  Here, if you're facing foreclosure, perhaps it's best to rob a bank first and maybe sneak in the foreclosure litigation in your case somehow. 

 
by K C | 2010/04/09 | log in or register to post a reply

thats just wtrong
 
by CHARLENE PERRY | 2010/04/09 | log in or register to post a reply

Not exactly what I am suggesting...

With regard to:

The Court in Connecticut issues a do it yourself instruction folder in divorce cases. Perhaps you are suggesting that something similar be done in foreclosure cases.

That isn't really what I was getting at.  I do think that representation in foreclosure cases is important.  But the reality is that it isn't going to happen.  I think the court's pro se answer form is a good step toward getting the homeowner involved in the case so they can participate in the conciliation process.  Unfortunately, it gives them a sense that don't need an attorney. 

I don't think they should provide more do-it-yourself help, but perhaps they should try do both: get the homeowner to participate AND encourage them to seek representation by giving them more information about what an attorney could do for them.

 
by Robert Franco | 2010/04/11 | log in or register to post a reply
Source of Title Blog

Robert A. FrancoThe focus of this blog will be on sharing my thoughts and concerns related to the small title agents and abstractors. The industry has changed dramatically over the past ten years and I believe that we are just seeing the beginning. As the evolution continues, what will become of the many small independent title professionals who have long been the cornerstone of the industry?

Robert A. Franco
SOURCE OF TITLE

 

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