General Information About Representing Yourself
Foreclosure Defense | Forensic Loan Audits | Lender Negotiations
Is it ever sensible to appear in court without a lawyer?
In a regular, more formal courtroom, sometimes it's also a good idea to represent yourself. Hiring a lawyer is almost always unaffordable for disputes that involve less than $25,000 and often unaffordable for disputes in the $50,000-$100,000 range. In these cases, representing yourself may be your only reasonable option.
Can I learn everything I need to know to represent myself in court?
The basics of how to bring or defend a case aren't difficult, but trying to get on top of every nuance of procedure and strategy isn't easy. A two-pronged approach can work best: learn how to handle routine representation tasks yourself while hiring a lawyer as a self-help law coach to provide advice on strategy and tactics as needed. In many situations, hiring a lawyer to coach your self-help efforts will cost only about 10-20% of what it would cost to hire the lawyer to do the entire job. Ten years ago, trying to find a lawyer who would help you find your own way through the legal system was next to impossible. Today, given the surplus of lawyers and a gradual change in the profession's attitude towards self-helpers, it's much easier. Because law is an increasingly specialized field, however, you'll want to find someone who is knowledgeable about your type of problem -- not just any lawyer.
Is it difficult to prepare the paperwork to initiate a lawsuit?
Actually, it's often fairly easy. Initiating a lawsuit is especially straightforward in states such as California and Michigan, where court clerks provide preprinted fill-in-the-blanks forms for many types of lawsuits, but even in states where lawsuits are filed the old-fashioned way, using paragraphs of appropriate legal jargon on numbered legal paper, the actual wording is almost always available word for word from forms books or CD-ROMs. These information sources, which are routinely used by lawyers, are available at all public law libraries (usually located in the county courthouse) and are usually fairly easy for the non-lawyer to understand.
I've filed my lawsuit. What do I need to do next?
Before a case gets scheduled for trial, a number of things need to happen. Information about most of these, for example, whether and when a settlement conference must take place, when papers must be filed, and how to place a case on the court's trial calendar, are available from the court clerk. Unfortunately, how to accomplish other pre-trial tasks, which often come under the broad title "discovery", is left largely up to you and the other parties to the lawsuit. For example, one type of discovery consists of your taking the deposition (oral statement) of the other party or one or more witnesses to find out what he or she is likely to say at trial. Other types of discovery consist of interrogatories (written questions to the other party), a request to produce documents, or a request that the other party admit certain facts (stipulations).
Representing Yourself in Foreclosure Defense
Gather all your Documents
The first thing you need to do is gather all the pertinent information pertaining to your loan and your financials. The first place to start is to dig out your old loan documents that you were initially given in conjunction with your loan. Get every bit of paper that was given to you in regards to your loan. If you lost some or all of your documents then the best thing to do is to obtain copies from your lender or Title Company. This can take time so request these documents immediately.
At the same time you are gathering your documents regarding your loan, you should also be gathering your documents pertaining to your current financial situation. This includes bank statements, W-2, tax returns, pay stubs, an itemized list of income and expenses, mortgage statements, documentation of any rental properties or alternative sources of income.
Obtain a Forensic Loan Audit
Once you have all your documents together the next step is to obtain a forensic loan audit. A forensic loan audit will uncover any statutory violations committed at the time the loan was originated. This is important because it can be used as a defense to any foreclosure action that is brought against the borrower. If a borrower’s loan contains federal statutory violations they can use those violations to claim the loan itself or the method used to originate the loan was illegal, thus reducing the amount owed on the property or invalidating the foreclosure completely.
Verify the Violation
A forensic loan audit will highlight any violations made in the origination of the loan. The first thing that should be done is that the violations should be verified. The forensic loan audit relies on the documents given to the loan auditors. This means that the auditors only have the documentation that has been given to them by the client when performing their forensic audit. While we do our best to make sure all documents have been received from the clients, sometimes clients have lost documents. If a page was not given to them, then it will not be consider as part of the audit. This could cause the auditors to find a violation when really the page is just missing.
The borrower should verify what the lender has in their files to see if the lender’s files and the borrower’s file match. To do this the borrower should send a qualified written request to the lender notifying them of the violation and request any documentation they have relating to the loan. This will allow the borrower to verify that there was a violation. For example, if the audit finds a HOEPA violation because the loan was a high cost loan and no HOEPA disclosures were made, then the attorney should send the qualified written request to the lender to determine if the lender has any documentation that the HOEPA disclosures were in fact made.
Qualified Written Request
Assuming that you have sent a written request to see if the lender has the same documentation as the client, then you should have a qualified written request filed with the lender. If not, then a qualified written request should be filed at this point notifying the lender of the violation. Once a lender has received a qualified written request claiming violation of lending regulation they are considered to be on notice of the violation. The lender then has 20 days to respond to the qualified written request. The lender than has 60 days to address any claimed violations.
The borrower should lay out in the qualified written request what violations they believe occurred when their loan was originated, statutes citing the claimed violations, what relief they seek, and contact information for the legal counsel. The forensic loan audit should be used to determine what violations have been found and the corresponding statute references. This will legitimize your qualified written request and give it weight with the lender.
The statute is vague on what actually has to happen within 60 days of receiving a qualified written request. The lender probably doesn’t have to completely remedy the violation within the 60 days, nor can they just respond with a boiler plate language response dismissing the violation. The lender is required to come to the table with a working plan that can be agreed upon with some negotiation.
Determine What Outcome you Want
Now that you have gathered all your documents and performed an audit on your loan and have evaluated your financial situation you can now make an educated determination on how to defend against the foreclosure and what you ultimately want form the result to be. It is important that you determine ahead of time what you specifically want from the lender and how you plan on defending against the foreclosure. This way you will be able to form a cohesive strategy going forward and dealing with the lender.
There are a number of different outcomes that you might consider in defending a foreclosure action. Some options might include but are not limited to:
- Working out a modification with the lender
- Reducing the amount owed on the mortgage
- Invalidating the foreclosure claim
- Working out a short sale
It is important to be realistic about what your options are and what you can hope for in your case. The more objective you can be about your case, the better you ability will be to effectively represent yourself. Regardless of what option you seek it is important to flesh out an approach of how you will lay out your arguments to the court.
At this point you should begin to gather the necessary evidence to prove you case or to support your claims. This evidence can take many forms ranging from documents, to depositions, to witness testimony.
Negotiating with the Lender
It is important to keep in mind that the foreclosure process is a last resort for the lender. The lender would rather come up with some other way to be repaid on the loan. This means that coming up with some alternative to the foreclosure, in most cases, will always be on the table as an option. If you are representing yourself always be courteous when dealing with representatives of the lender, do not let your emotions get the better of you. Always be firm in what you are requesting but do not be rude. Be prepared to give and compromise in your negotiations with the lender.
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