Preliminary Inquires Preceeding Foreclusure: A Small Investment in the Proper Letter May Open Many Doors and Avoid Nightmares Later

We have been receiving an increasing number of inquiries from foreclosure victims requesting our assistance in dealing with recalcitrant servicing companies who either ignore or send a “bluff response” to inquiry or demand letters sent by borrowers who are not attorneys. We have also received a literal deluge of telephone calls, e-mails, and faxes from borrowers who are attempting to advance defenses to foreclosure under Federal and state laws in court without the assistance of an attorney. In many of these instances, the borrower victims tell us, consistently, that when they try to make their arguments that the Judge “laughed at me”.

This harkens back to an article which I previously wrote for this blog advising on the dangers of going to court without an attorney, which is suggested reading. However, this article deals with the pre-foreclosure lawsuit process, where borrowers are being equally frustrated as well.

When a borrower sends a pre-foreclosure inquiry or demand letter to a “lender” or mortgage servicing company which touts citations to TILA violations, Federal law, and the like, the servicing company is going to do one of two things, either (a) realize that the borrower is probably “surfing the net” and trying to “play attorney”, knowing that a response of “there are no violations” is going to put the borrower on the defensive and confound them, or (b) send the letter to their attorney, who will likewise advise the borrower that they have no claim. In this instance, few if any borrowers know what to do next. An attorney versed in the concepts in this blog not only knows how to respond to this, but also undertakes efforts to avoid the type of “blow them off” response which is typically sent to a borrower. Recent responses from lenders and servicing companies to formal inquiry and demand letters crafted by attorneys associated with this blog show that when the letter is written by an attorney that the response is very different, and in certain instances which are becoming more frequent, the response is that the “lender” would like to engage in settlement discussions without going to court.

The entire tone for the negotiation and/or litigation process is often set by the initial inquiry or demand letter. A borrower who tries to do this on their own is invariably going to miss several, if not numerous, legal issues which, if properly presented by an attorney, should get the attention of the lender, servicing company, or their attorney(s), as it is this “first impression” which lasts. An attorney coming in after a borrower has muddied the waters is going to have more work ahead of him or her than an attorney who comes in at “ground zero”.

As such, the investment of a sum of money, at the initial stages of the process, with an attorney versed in foreclosure defense may be not only well worth it, but may ultimately save the borrower in the long run from having to hire an attorney to undo whatever damage the borrower did before hiring the attorney (sort of like an accountant trying to do a brake job on his own to save the cost of having a mechanic do it, only to have to pay the mechanic double when the brakes fail).

Those old adages like “a stitch in time saves nine”, and “penny wise and pound foolish” are pertinent here, as is the old commercial where the repairman says “well, you can pay me now or pay me later, but later is going to be a lot more”.

Once again, law is an extremely specialized field of endeavor which should not ever be “dabbled” in by non-lawyers. Doing so may not only result in you losing your home, but may also result in your having to pay the attorneys’ fees of the lawyer for the foreclosing party because the court or judge finds that what you attempted to argue was “frivolous”.

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