ALLIANCE of Providers of Legal Services

To Individuals Facing Foreclosure

 

FORECLOSURE PREVENTION TASK FORCE

of the Hampden County Bar Association

and its Bankruptcy Committee

 

 

 

 

WHAT CAN BE EXPECTED FROM AN ATTORNEY

 

An individual who contacts the Alliance FORECLOSURE HOTLINE can expect to participate in an intake interview to ascertain the facts of the case and the individual’s financial circumstances. The questions are to enable the intake Coordinator to effectively refer the caller to the attorney best able to serve the needs of the caller.

 

Based on the intake information, the Coordinator will contact an attorney best qualified to address the legal needs of the caller and to attempt to accommodate the financial circumstances of the individual.

 

Once the appropriate attorney has been identified and contacted, the individual will be requested to contact the attorney or advised that the attorney will contact the individual.

 

If the individual is to contact the attorney, it is necessary that such contact be made promptly. The individual will be provided with attorney’s telephone number. If the individual is unable to immediately reach the attorney or if the attorney does not return the original telephone call within 48 hours or is unavailable to meet with the client within a reasonable time or unavailable to meet generally, the individual should promptly call the Hotline to report such facts and to obtain an alternative referral.

 

The potential client should be aware that the astringencies of a law practice may prevent an attorney to immediately return a telephone call or even to consider a new case at any given time. While the attorney should extend the courtesy of advising as to his/her present unavailability, the Hotline Coordinator will attempt to contact the attorney or to assign another lawyer to conduct the initial interview. The individual has an obligation to be persistent in efforts to reach the assigned attorney.

 

If the individual is to be contacted by the attorney, if it is an emergency situation and the attorney has not made the contact within a prescribed time, the individual should promptly contact the Hotline Coordinator who will endeavor to arrange an immediate contact. If it is not an emergency, the individual should wait a day or two before contacting the Hotline Coordinator to expedite the contact or to solicit the services of substitute counsel.

 

While there is no excuse for the attorney to make a timely contact, individuals should be aware of the fact that there are circumstances that can preclude an attorney from making immediate contact…including illness , vacation or personal emergencies. The fact is that the attorneys providing services have volunteered his/her time.

 

Once an appointment has been scheduled, it is imperative that the individual keep the appointment in a timely manner. If the individual cannot keep the appointment timely as scheduled, the attorney should be contacted to reschedule the appointment. It is not required that the attorney reschedule an appointment that the individual has failed to keep.

 

The attorney will expect that the client will bring to the initial appointment and any and all original documents relating to the mortgage application, the purchase of the real estate, the mortgage transaction and payment records in addition to notices and correspondence relating to default and foreclosure. The attorney will evaluate the case based upon the facts that can be gleaned from the original documents as well as the representations that the individual can supply. Not to have all of the available documents ready for the attorney will result in an unsatisfactory appointment. Indeed, the individual should have available the names and telephone numbers of each of the people with whom he/she has had prior contact relating to the transductions and the prospect of a foreclosure.

 

It is possible that based upon the facts, the attorney will determine that there is no legal basis upon which to delay or prevent foreclosure. Not all foreclosures can be delayed or prevented. If there is no legal basis to prevent the foreclosure, the attorney may be able to refer the individual to a source of financial, housing or social service counseling. If the attorney can not provide such referral, the individual should once again contact the Hotline for an appropriate referral.

 

It is possible that even if foreclosure can not be prevented, the attorney may provide other legal advice including the recommendation of filing a Petition under Chapter 13 or 7 to address financial issues and seek to obtain a fresh start.

 

It is also possible that the attorney may conclude that he/she does not possess the specialized expertise to pursue the legal course of action that is recommended. In such circumstances, the attorney may suggest that he/she join with co-counsel in undertaking the requisite representation or, in the alternative, refer the individual to an attorney specializing in the areas of law recommended to be pursued. The decision as to what action is to be undertaken is that of the individual. If the attorney is unable to recommend an attorney having the requisite expertise, the attorney or individual can call the Hotline for the name of someone who may be available to provide representation.

 

Because the recommendation of legal remedies that are available will depend upon the specific facts of the case as developed through a review of the documents and the initial consultation, it is impossible to predict as to what action the attorney will recommend. However, here are some of the possible recommendations:

 

* There may already be an injunction against the lender – or the holder of the original

mortgage – from foreclosing, whereby counsel can rely on such prior Court action

to prevent and/or avoid foreclosure.

 

* There may be a violation of state or federal law in the solicitation or documentation of

the original sale of the real estate or mortgage that could give rise to the

commencement of a lawsuit in state or federal court.

 

* There may be a violation of state or federal law that could allow for a rescission of the

mortgage.

 

* There may be a defect in the chain of title of the holder of the note or mortgage that

could preclude the holder from proceeding with a foreclosure.

 

* The attorney may recommend the filing of a Petition under Chapter 13 of the

Bankruptcy Code to obtain the benefits of the Automatic Stay that it provides and/or to

obtain the jurisdiction of the Bankruptcy Court to defend against foreclosure or to assert

affirmative causes of action.

 

If the individual does not understand the alternatives that are represented by the attorney or the reasons for or results of such recommendations, it is incumbent upon the individual to ask questions and request explanations to understand the recommendations and their consequences.

 

If the individual is willing to accept the recommendations of the attorney and the attorney is willing to accept the representation, there should be a specific agreement as to the fee to be charged and the method of payment. While the fee basis on which an attorney will undertake a case is by agreement with the client, some typical arrangements include:

 

* Pro bono, i.e. without fee to the client.

 

* A discounted fee based upon the complexity of the case and the client’s ability to pay.

 

* A contingent fee basis, i.e. a percentage of any amount recovered by the attorney for

the benefit of the client or as allowed by the Court and to be paid by the opposing

party.

 

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If the attorney agrees to represent the client and there is an agreement as to the fees to be charged, the parties should enter into a Fee Agreement setting forth the services to be rendered and the fees to be charged and the agreed method of payment.

 

If the individual and the attorney do not agree on continued representation and the individual is in need of an attorney to render further services, the individual should contact the Hotline Coordinator in an effort to find alternative representation. While there is no assurance that other counsel will be available, the Hotline will expend every reasonable effort to identify an attorney available to provide the required services for a fee that the individual can afford.