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 IS EXPECTED OF ATTORNEY VOLUNTEERS

 

It is a given that each attorney who has volunteered to render legal services to individuals facing the prospect foreclosure has done so out of recognition of the seriousness of the existing foreclosure crisis and of the stress and apprehension being felt by the individuals who are seeking legal advice and representation. Therefore, it is an underlying tenant of the program that each individual who seeks such services be treated with the same respect and courtesy and sense of urgency as would be extended to any other client…regardless of ability to pay.

 

It is a further given that each attorney who has volunteered has reasonable knowledge of the legal issues involved in the representation of individuals facing the prospect of foreclosure and the legal options that are available to the individual in such circumstances. The attorney volunteer is expected to have had experience in advising individuals in similar circumstances.

 

THEREFORE, what is expected of each volunteer attorney is that the attorney will

 

* Continue to participate in educational programs that will improve the attorney’s

knowledge and skills in those areas of the law that will better equip the attorney to

represent clients facing foreclosure.

 

 

* Promptly respond to or contact the prospective client to schedule a timely meeting with

the individual seeking legal representation. If unable to contact the individual or to

accommodate a timely meeting, to contact the referring coordinator so that an

alternative referral can be made.

 

 

* Each initial consultation with the prospective client is without charge.

 

 

* At the initial consultation to ascertain the underlying facts of the case and based upon

the information ascertained, advise the client as to the alternatives that are available.

 

Among the options for advise that may be appropriate:

 

+ The client’s legal problems do not fall within the parameters of the foreclosure

prevention program, i.e. the individual has not been the victim of predatory lending

practices and is in a situation resulting from a change in the client’s circumstances

(a disabling injury, a divorce or loss of job}.

 

In such cases, the attorney is free to address the individuals options as if the

individual were a private client consulting the attorney for advise…including the

option of recommending Chapter 7 or 13 to obtain relief from debt.

 

It is obviously beneficial if the attorney can guide the individual to a place or

individual who can provide the non-legal services that may be required, i.e.

financial counseling, a lender that may refinance the property or a real estate

broker who can provide assistance in selling the property if such services are

appropriate.

Counsel should be aware of social services that are available if such services are

required in place of or supplemental to legal services.

 

 

+ In appropriate cases, some effort should be made to attempt to effectuate a

voluntary modification of the existing mortgage loan.

 

For purposes of the proffered representation, a modification is defined as a

reduction in principal amount due and of the interest rate with a forgiveness of all

or of a substantial portion of the defaulted amount past due.

 

The Alliance and the Task Force have prepared and have distributed a list of loan

modification contacts to expedite efforts in contacting someone with authority to

approve a loan modification.

 

 

+ In cases in which a workable modification is not possible and the value of the real

estate is less than the mortgage balance, negotiations for a deed in lieu of

foreclosure may well be a realistic option requiring the advise of counsel to assure

that the voluntary surrender of the property does not result in the continuing

liability of the mortgagee-client. All too often a deed-in-lieu transaction is handled

by a real estate agent or broker whose interest is effectuating the transaction and

not protecting the interests of the homeowner.

 

+ All documents should be reviewed to determine if the documents or circumstances

of execution would give rise to a cause for rescission.

 

 

+ In the appropriate situations, a determination should be made to determine if there

is a right to cure.

 

 

 

+ The attorney should be familiar with mortgage programs that may be available to

the homeowner that would allow a replacement of the predatory loan under a

special mortgage program underwritten by the federal government or others.

Refinancing under such a program is a viable option for those who may qualify.

 

 

+ The lender may already have been enjoined from pursuing a foreclosure as a result

of an action initiated by the Attorney General (i.e. Freemont Investment & Loan,

Option One and H.R. Block) or by others (i.e. GMAC Mortgage and Deutsche Bank

National Trust Company (pending)).

 

 

+ The actions of the lender, the terms of the loan, the lending documents, etc. may

have violated state or federal law and therefore give rise to a cause of action that

may justify seeking injunctive relief in state or federal court and the provisions of

which may well provide for the recovery of damages and attorney’s fees.

 

If the attorney is uncomfortable in pursuing such causes of action, there are

mentors available to assist or to serve as co-counsel in these cases. The attorney

should not hesitate to refer these cases to those experienced or specializing in

consumer protection and/or 93A type cases.

 

 

+ Bankruptcy – Chapter 7 or 13 - is always an alternative.

 

It is to be remembered that the Bankruptcy Court may well be a venue of choice

to pursue any of the causes of action that may be available to the client…and may

be a more hospitable and expedited venue for the assertion and defense of a

debtor’s rights.

 

 

* If the attorney and the client agree on the course of action to be pursued and on the fee

arrangements, then it is required that the attorney and the client enter into a fee

agreement specifically setting forth the services to be rendered, the fees to be charged

and the agreed method of payment of such fees.

 

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* If the attorney does not have the expertise or experience to represent the client in

pursuing a particular option, the attorney has the options of

 

+ working with a mentor or as co-counsel with an attorney or firm having the

specialized expertise that is required,.

 

+ referring the client to an attorney or firm having the specialized expertise that is

required, or

 

+ contacting and advising the coordinator of the situation so that an alternative

referral can be accomplished.

 

It is important that the client not be abandoned.

 

 

 

* The attorney has several options as to the financial basis on which continued

representation will be undertaken:

 

+ The attorney can, of course, represent the client pro bono.

 

+ The attorney can charge a discounted fee based upon the client’s ability to pay.

 

+ The attorney can undertake the case on a contingent fee basis if the circumstances

of the representation to be undertaken anticipates the realization of assets or

payment of a fee my a third party (defendant).

 

+ The attorney can undertake the representation on a full fee basis, in which case the

attorney agrees to pay 15% of the net fee received to the Hampden County

Referral Service.

If the would be client cannot afford to pay the requested fee, the attorney should

contact the coordinator to advise as to the facts and the individual should be referred

back to the coordinator in an effort to determine financial eligibility and to attempt to

find counsel willing and/or able to undertake the representation.

 

It is hoped that whenever possible that attorneys will attempt to accommodate the

potential client’s ability to pay.

 

 

It is important that the client not be abandoned.

 

 

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* The attorney shall advise the coordinator as to whether the referred individual

contacted the attorney, met with the attorney and the nature of further representation as

well as to the final outcome of the case if representation is undertaken.

 

The coordinator should likewise be notified if the matter has been referred to other

counsel and as to the nature of the representation for which the referral has been made.

 

 

* OF PARAMONT IMPORTANCE IS TO BE AWARE THAT THESE

EXPECTATIONS ARE PROVIDED FOR THE GUIDANCE AND FOR THE

BENEFIT OF THE ATTORNEYS PARTICIPATING IN THE FORECLOSURE

PREVENTION PROGRAM….MOST IMPORTANT IS THE DELIVERY OF

PROMPT, COMPETENT, HELPFUL AND AFFORDABLE LEGAL

SERVICES TO THE CLIENT FACING FORECLOSURE.