Balancing the Scales of Justice for Pro Se Homeowners

Should I fight my foreclosure through an attorney or as a pro se?

Posted by on Jan 2, 2012

Knowing what I know now, I am not so sure I would have fought my foreclosure.  Not because fighting the foreclosure was wrong but because the information I needed to absorb and understand was overwhelming; even more so when I fired my attorney and decided to fight the battle as a pro se.  There is so much information on the subject but no clear guidelines or tools to help homeowners in their decisions and most are forced to learn as they go along. Info to Fight Foreclosure is all about helping you understand your choices so you can make the one that is right for you and your family.   This particular article is for those who have decided to fight the foreclosure.  So I would ask anyone considering fighting their foreclosure – what do you expect the final outcome to be and what are you willing to do to ensure that outcome?

There is nothing in this world that will replace good, solid legal representation in fighting your foreclosure.  If you can afford an attorney, hire one.  Not just any one, but one that understands foreclosures for your where your property is located (it is not enough to just know the state laws, they need to understand your county, the judges they will be dealing with during your legal battle and how others are faring in their fight against foreclosure in your county) and understands what is happening throughout the country with securitizations as well as the fraudulent, deceptive foreclosure practices of the banks doing the foreclosing.

Whether you have an attorney or not, YOU should also understand what foreclosure is, the grounds on which to fight a foreclosure, and the methods to fight the foreclosure.   This means ensuring that you have a good grasp on understanding what securitization is, what your state statutes (laws) are, and the different ways in which to attack the foreclosure through legal methods (i.e. lawsuits).

The final decision on whether to fight your foreclosure through an attorney or as a pro se is dependent on your circumstances.  If you are like millions of other homeowners you have fed your cash to the bank and now have no choice but to represent yourself.  If that is the case, then know you are not alone.  There are millions of us fighting and sharing our experiences.   The tide is turning on this war and as more and more battles are being fought, American homeowners are persevering and winning.

Fighting the Foreclosure through an Attorney

If you have an attorney, you need to be able to let your attorney know:

  1. Where you are in the foreclosure process. 
  2. Who owns the Note (as far as you now)
  3. What, if any, communications you have had with the different parties involved in the foreclosure (i.e. foreclosing trustee, the servicer, etc.)
  4. Be able to discuss the different causes of actions that you may use in your fight (your attorney will suggest causes of actions but you should also be able to discuss possible causes and why you think they are viable.  Viability is not based on what  you think but on what you can prove and what the law says) and be prepared to participate in your defense or pursuit of attacking the foreclosure.
  5. Be prepared to pay.  It takes money for legal representation, for filing fees, service fees, etc.
  6. Hang on tight; it is a hard, long battle.

 

Fighting the Foreclosure as Pro Se

If you are going to fight the foreclosure as a Pro Se (you will represent yourself) then you need to learn the legal system el pronto.  While most of your opponents (the moneyed banks have plenty of money to pay experienced, savvy attorneys to oppose you) will have both professional schooling and experience under their belt you are starting, most likely, from scratch.  There are great tools to help Pro Se’s in their legal quest and I recommend you get familiar with all the ones listed here.  

Jurisdictionary® is an inexpensive ($249.00) step by step guide to helping you win your lawsuit.  Jurisdictionary explains the basics of how to file and /or fight a lawsuit.  Within 20 hours of reading and reviewing the materials an individual will have a basic understanding and grasp of how to put together their legal pleadings[1], how to research and understand causes of actions along with how to research and find cases to support your causes of actions.  I trust this site because I myself am a user of the program.  It is an invaluable resource that I refer to on an almost daily basis and we are an affiliate of Jurisdictionary.  Click here for Jurisdictionary

SmartRules requires a monthly fee but it a great tool for quickly knowing what the process and timelines are for filing your legal pleadings in your local state or federal court.  You can select a membership just for your local court and it is a month to month cost; so you can use it for only as long as you need it.  We are not an affiliate of SmartRules.  Click here for SmartRules.

Google Scholar is Google’s website for rulings and opinions on a variety of cases, dating back to 1950, though I have found some cases going back to 1877 (didn’t shepardize those!). This site is FREE and will also provide you information on how the particular case you are reading has been cited by other cases.  Click here for GoogleScholar.  Make sure, under the Search bar that you select Legal Opinions and Journals, and then once in the legal opinions and journals, select the jurisdiction[2] you want the cases from.   Also, do not forget to shepardize[3] any case you select to use in a pleading as Google Scholar doesn’t tell you the history of the case or whether it has been overruled by another case.  Click here for more instructions on how to use Google Scholar for free case law research.   If you still need more help, purchase our Google Scholar manual that provides step by step instructions on how to use Google Scholar case research.  (If you are a member you received it in your membership kit)

Nolo Law for All has a bounty of information for understanding the law and how it works.  In particular – Law and Cases: How to Do Legal Research – there is fabulous information on how to read the law and how to research cases.  I particularly love their section on how to read and understand a statute.  Who knew “and” and “or” could have so much impact on a statement?

JustAnswer is a site that allows you to connect with attorneys to ask them questions.  My favorite real estate attorney is one called Socrateaser – don’t let the name fool you.  There is nothing teasing about his advice, which he typically will back up with case cites.  You can ask your question for a small nominal fee, then bonus the attorney based on the answer once you accept the answer; or you can pay a small monthly fee and ask as many questions as you want.  Just be careful; if you don’t ever pay don’t expect the savvy ones to answer.   Click here to ask your question of an attorney.   And yes, we are an affiliate of this site.

There are thousands of other sites out on the internet; we selected these sites because they tend to be a little more in “layman’s terms” and easier to understand.  I really recommend you spend time with Nolo Law for All first.  Many people read the statutes and misunderstand what they are reading; Nolo helps you understand what you are reading.  

NOTHING REPLACES LEGAL, COMPENTENT REPRESENTATION

I would not wish pro se status on anyone.  Fighting foreclosure (or unlawful detainer) is tricky and scary; you are emotionally invested in the outcome so keeping your emotions out of the legal pleadings and court appearances is a tough nut to crack.  But if you are like me, your money may have been depleted and you now have no choice but to represent yourself in your battle.  My recommendation is if you can afford legal representation, hire an attorney.  If you can’t, then plan on a lot of hours researching the law and the issues and tuck away your emotions as best you can.  It is a tough battle but if you are willing to put in the hours and do the homework then it is possible to win your legal battle.

 

Keep Fighting!

Simonee


 

[1] Pleadings: Formal written statement filed with a court by parties in a civil action.

[2] Jurisdiction: The official power to make legal decisions and judgments.

[3] Shepardize: Term used in the legal profession to describe any process of using a citator to discover the history of a case or statute to determine whether it is still good law.


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