While you have the legal right to defend yourself against a foreclosure without a lawyer (called “pro se”), foreclosures are complicated. If you want to fight a foreclosure, you should consider hiring—or at least consulting with—a lawyer.
Read on to learn more about why it's usually better to hire a lawyer than to go at it alone if you want to defend against foreclosure successfully. (To find out when it probably isn’t necessary to hire a lawyer in a foreclosure, read Nolo’s article When You Might Not Need a Foreclosure Attorney.)
If you stop making your mortgage payments, foreclosure is the legal process that the lender (or a subsequent owner of the loan, called an "investor") will use to sell your home and pay off the debt you owe.
Depending on state law and your circumstances, the lender will either:
(For more information about the differences between judicial and nonjudicial foreclosures, and the procedures for each, see What Are the Differences Between Judicial and Nonjudicial Foreclosures?)
Unlike filing a case in small claims court, for example, foreclosure defense is not something that most homeowners can tackle on their own. While you can defend against a foreclosure without a lawyer, it’s difficult—especially in the case of a nonjudicial foreclosure. Because nonjudicial foreclosures happen outside of court, you’ll have to file a lawsuit to get a judge’s attention. (To learn whether your foreclosure is likely to take place in court or without court supervision, see Will My Foreclosure Be Nonjudicial?)
If your foreclosure is judicial, then it’s easier—and generally less expensive—to take an active role in the existing foreclosure lawsuit. (To learn more, read How to Fight a Foreclosure in Court.)
Still, either way, here’s why it’s a good idea to hire a lawyer if you want to challenge a judicial or nonjudicial foreclosure.
Foreclosure lawyers typically have years of training and extensive knowledge about the laws—both state and federal—that protect homeowners in the foreclosure process. Lawyers also know how to use the law in the correct way in court documents and during a trial.
Foreclosure law is always evolving; courts decide new cases, and state and federal laws change. These changes could help with your case. It's almost impossible for a nonlawyer—or even a lawyer practicing in a different area of the law—to keep current with all legal updates in this area. Only an experienced foreclosure lawyer will be up to date on all of the defenses and legal nuances that can make or break your case.
Foreclosure defenses are often complex. For example, let’s say you want to fight a foreclosure by claiming the servicer didn’t correctly follow state or federal law when foreclosing or doesn’t have standing (the right) to foreclose. You’ll need to locate, read, and understand complicated documents like statutes and court decisions. Lawyers learn these skills in law school and review these types of materials all the time when practicing law.
In the course of defending against a foreclosure, you'll need to file court documents by specific deadlines and in the correct format, and perhaps handle a trial. Even if you have a solid defense, if you mess up, the court won’t give you special dispensation just because you aren't a lawyer.
Ultimately, under most circumstances, you have little chance of prevailing against a foreclosing lender unless a skilled lawyer assists you. If you think you have a defense to the foreclosure—but can’t afford a lawyer to represent you throughout the entire process—consider paying for one meeting with a lawyer to get advice about your options, rights, and responsibilities. (To get information about when in the foreclosure process you should meet with a lawyer, see When Should I Hire a Foreclosure Attorney?)
You might also be able to get free legal help from a legal aid office if you meet specified criteria. You can find a list of various legal aid programs on the Legal Service Corporation's website.
