Practice Pointers: Foreclosure Defense is Not About Getting a Free Home



When I started this blog almost a year ago, I wrote that one of the major myths of foreclosure defense is that a borrower can get a free home if they fight their foreclosure.  What was true then remains true today: foreclosure defense is not about getting a free home.

Obtaining a free home in a foreclosure defense case is a completely unrealistic goal.  While lenders and servicers have made a mess out of the foreclosure process–and continue to do so–these mistakes can, and certaintly will, be corrected at some point in time. Faulty notices can be corrected, loan modifications can be re-reviewed properly, and missing promissory notes can still be enforced.  A lender is doing a foreclosure because a great deal of money is at stake: anywhere from $100,000-$500,000 (and sometimes even more).  If a lender has made a mistake in the foreclosure process, it will be corrected: there is too much money involved to do otherwise.  In short, without dealing with the unpaid debt that caused the foreclosure, the ax will eventually fall for the homeowner.

A much more realistic goal for foreclosure defense is affordability: obtaining a mortgage loan that a homeowner can pay.  A well-crafted foreclosure defense can convince a lender that a reasonable loan modification is a better option than spending years in litigation.  But, make no mistake: even the best lawsuit is never going to convince a lender to give up their mortgage on a home.

As a foreclosure defense attorney, I practice what I preach:  I do not accept clients with unrealistic goals in foreclosure defense, nor do I advocate legal arguments that would amount to a court giving my client their home for free.  Attorneys and pro se litigants who do make these arguments cause much more harm than good; not only do they hurt their own cases, they make this area of law harder for everyone else.