8 Questions to Ask Before Hiring a Foreclosure Lawyer
- Do You Primarily Practice in Bankruptcy Law?
- Do You Regularly File Lawsuits Under RESPA and the FDCPA for Your Clients?
- How Frequently do You Depose the Bank's Representatives?
- When Was the Last Time You Went to Trial for a Client?
- How Frequently Do You Represent Your Clients in Appeals?
- Are You Licensed to Practice Law in This State?
- How Long Have You Been Licensed to Practice Law?
- What Are Some of Your Major Court Decisions Impacting Consumers?
1. Do You Primarily Practice in Bankruptcy Law?
A foreclosure defense lawyer is not the same as a bankruptcy lawyer. An excellent foreclosure defense lawyer will probably even refer out their bankruptcy cases so they can focus on actual foreclosure defense litigation. This is because true foreclosure defense is about actually defending a foreclosure in court. A foreclosure defense lawyer will review a client’s file for violations of state and federal law, analyze defenses and claims, and file formal pleadings in court on behalf of their clients. Then, they will conduct discovery, deposition, and file motions and replies to try to win the case. They create leverage for their clients that get deals done that might not otherwise be on the table.
Bankruptcy is not part of foreclosure defense in court, but rather a way to force the bank to accept payments (via a Chapter 13) or to discharge the debt through Chapter 7. A bankruptcy lawyer doesn’t argue in court over standing, UDAP laws, conduct discovery, or bring a fight to the other side. They are form-driven attorneys focused on volume.
Many bankruptcy lawyers advertise “foreclosure defense” on their website, but look a little closer. If the majority of their website or their homepage talks about bankruptcy, then they are probably a bankruptcy lawyer and not a foreclosure defense lawyer. This means they will probably be more focused on getting you into a bankruptcy than reviewing your loan documents or fighting the foreclosure in court. It also means the deals they get are probably “in the box” solutions, if they even attempt to help the client with the loss mitigation process.
Many people do not want to file bankruptcy, or cannot qualify. If this is you, ask the lawyer whether they primarily practice in bankruptcy. If yes, then they probably don’t actually defend foreclosure in court. Doucet Gerling Co LPA does not file bankruptcy on behalf of our clients, and refer those cases out so we can focus on true foreclosure defense for our clients.
2. Do You Regularly File Lawsuits Under RESPA and the FDCPA for Your Clients?
RESPA stands for Real Estate Settlement Procedures Act. FDCPA stands for Fair Debt Collection Practices Act. These two federal laws are very important in the context of foreclosure defense. This is because both of these laws provide for important consumer protections. If they are violated, you can obtain damages plus even cover the cost of your attorney.
Good foreclosure defense lawyers will not only be familiar with these laws, but regularly file lawsuits under them. They not only provide great benefits to the client if they succeed, but they generate tremendous leverage to get great deals done. RESPA is especially powerful, and regularly violated by most mortgage servicers.
These lawsuits are usually fought in federal court, so your attorney needs an additional level of licensure to file these. These lawsuits can also be complex, so only the best foreclosure defense attorneys will regularly file these for their clients. A foreclosure defense attorney who is more interested in quantity of clients paying each month likely will not file many (or any) of these kinds of lawsuits.
Doucet Gerling Co LPA regularly files RESPA and FDCPA lawsuits on behalf of its clients. We have also created caselaw in these areas. One of our RESPA cases has been cited over 350 times by judges and publications.
3. How Frequently do You Depose the Bank's Representatives?
If your foreclosure lawyer does a good job at defending foreclosure, they likely regularly depose bank representatives. That means they spend the time to sit down in a room with a court reporter and a bank representative to ask them about the facts of your case. Even if the case does not appear to have a lot of defenses, depositions can yield tremendously beneficial information.
These depositions can last several hours. A good foreclosure lawyer will be more interested in getting into a deposition than an attorney who doesn’t want to spend the time. A great foreclosure attorney will be able to find something from a deposition that they can use in your case. Doucet Gerling Co LPA’s lawyers regularly depose bank representatives and try to do so in every mortgage case.
4. When Was the Last Time You Went to Trial for a Client?
The number of trials are diminishing greatly, and most foreclosure cases are resolved at summary judgment or settled. We are seeing deals faster than we have in the past. However, a good foreclosure defense attorney will have gone to trial for one of their clients in at least the past 2 years. If you talk to a foreclosure defense attorney who hasn’t been to trial then we would recommend you continue to look elsewhere. A lawyer who hasn’t been through a trial is either very new, settles every case no matter the terms, or passes cases to others to try.
You should look for an attorney who is experienced with litigation and who has tried a case before. Doucet Gerling has tried a number of foreclosure and non-foreclosure cases and we are always willing to go to trial as appropriate for our clients.
5. How Frequently Do You Represent Your Clients in Appeals?
Whether the foreclosure defense lawyer has appellate experience will tell you a lot. A foreclosure lawyer who has a lot of appeals under their belt is someone willing to go the extra mile. Not only can they be time consuming, but they require a deep technical knowledge of the litigation process. This kind of knowledge is helpful for all their clients at the trial-court level. It helps an attorney frame arguments, know what is important, and how to properly preserve a record.
There is one attorney in Ohio who does a lot of marketing for foreclosure defense, but he primarily just seeks loan modification for his clients. He doesn’t do appeals, and we’ve had several of his past clients call us when his firm can’t handle their matter any longer. If you ask up front whether the lawyer regularly works with appeals, you’ll have a better idea of whether you’re talking to an expert.
Doucet Gerling Co LPA has taken over 100 cases at the state and federal appellate level. We’ve defended clients who won and lost there, and have created some important precedent.
6. Are You Licensed to Practice Law in This State?
There are too many “loan modification” companies out there preying on people in foreclosure. They promise the moon, but don’t always deliver. Working with one of these companies can be devastating when the bank intends on filing foreclosure. If that company does not employ a lawyer licensed in your state, then it cannot file pleadings or motions in court for you. This can lead to disaster and you should avoid these kinds of companies.
We have represented people who have hired these companies only to find themselves with the sheriff sale right around the corner. Judgment was entered while the client thought their loan modification company was helping. They might even have been lied to. You should always look for a firm licensed to practice law in your state.
Our lawyers are licensed in the states we practice law.
7. How Long Have You Been Licensed to Practice Law?
There are some great lawyers right out of school. There are also some really inexperienced lawyers right out of school that shouldn’t jump right into complex litigation. Then again, there are some lawyers in practice 50 years who shouldn’t be taking on foreclosure matters. Someone licensed at least a couple years probably has the experience and knowledge to do a good job defending foreclosure. If they work for a firm that has very experienced foreclosure defense lawyers, then that is good too. You want the managers at a firm to have an expert understanding of foreclosure defense.
Attorneys Doucet and Gerling have over a decade of legal experience. They wrote “27 Legal Defenses to Foreclosure” and regularly teach other lawyers on the area of foreclosure defense.
8. What Are Some of Your Major Court Decisions Impacting Consumers?
This question can really separate the foreclosure defense lawyers apart. Assuming the lawyers you are talking to have passed all the prior questions, asking about major decisions will show you who is the best of the best.
Lawyers who regularly defend foreclosure, aggressively pursue their clients’ goals, and are willing to go the extra mile will have at least a handful of important cases to their name. These are appellate-level cases that create or shape the law. While not every appeal wins, you’ll find that the great lawyers know when they are right, appeal when their case is good, and understand how to frame arguments at the court of appeals. If your foreclosure defense lawyer has a few precedent-setting cases won in the area of foreclosure/consumer law, they are probably a great choice.
Doucet Gerling Co LPA has dozens of appellate decisions to its name. Three cases our lawyers won at the federal appellate level have created precedent-setting guidelines for other courts to follow. They include:
Marais v. Chase Home Finance, LLC, 736 F.3d 711 (6th Cir. 2013) – This is one of the first decisions under the Real Estate Settlement Procedures Act creating 6th Circuit precedent regarding a borrower’s ability to maintain a claim under RESPA.
Slorp v. Lerner Sampson and Rothfuss, 587 Fed.Appx. 249 (6th Cir. 2014) – This case created 6th Circuit precedent allowing a borrower to bring a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) against a bank and the law firm representing the bank for actions taken in pursuit of a state foreclosure. Importantly, the Court expanded the interpretation of property injury and recoverable damages under 18 U.S.C § 1964(c).
Majestic Building Maintenance, Inc. v. Huntington, 864 F.3d 455 (6th Cir. 2017) – Here, the 6th Circuit affirmed the UCC principle that a bank could not disclaim its duty to act in good faith and exercise ordinary care under the Uniform Commercial Code, one of the first cases nationally on this issue.
To reach Doucet Gerling Co., LPA for an Ohio-based foreclosure defense matter, call 888-200-9824.