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What to Ask Your Prospective Attorney

Posted November 25, 2009 for public distribution


So you have decided to challenge your servicer as to whether they really have the right to collect anything from you and whether they have been turning over payments to the proper party (the real lender) and whether they have any information regarding the securitization of your loan, and an accounting for ALL money exchanged or paid in connection with your loan.

You've decided to challenge the pretender lender on whether they really own your loan and whether they represent any other entity that might be the REAL LENDER. You want to know who the real lender is and whether they have any enforceable right to collect money, enforce the note or obligation, or enforce the mortgage or deed of trust.

You have decided to hire an attorney, but like all fields, there are attorneys that are good at one thing and not so much on others. You want an attorney who is a crusader, who is not looking for a single silver bullet like "produce the note." You want someone who believes in you and believes in your case. You want someone you can trust and whom you like. Big retainers mean big bills generally speaking unless they charge you a project fee that is all inclusive.

Yes this is a lot of work to do, but hiring an attorney who is only halfheartedly representing you with the notion that you owe the money and anything he does for you is enough, even if it is a minor delay. Keep looking. Don't expect the first one you meet to be THE ONE.

And remember it is YOUR case, they didn't screw you (the securitization players did that) and they don't owe you anything. They spent a lot of time getting educated and trained to practice law and they are entitled to substantial fees compared with other jobs.

Here are the the things you should want to know and to get clear answers that are verifiable from any attorney you interview:

  1. What type of practice do they have?
  2. Have they litigated property matters before? How many times? With what results?
  3. Have they litigated mortgage issues including foreclosures? How many times? with what results?
  4. Do they have any specialization, certification or degrees in real property law, securities, contract law, Uniform Commercial Code, appraisals, real estate closings? What are those and when did they get it?
  5. Do they have a working knowledge and experience litigating in Federal Court (bankruptcy preferred), State Court, jury trials, non-jury trials. How many trials have they been lead counsel? What is their record of success?
  6. How would they rate themselves in proficiency in motion practice, discovery, trial, cross examination?
  7. Can you get references from other clients?
  8. Will they litigate to win or just delay the proceedings?
  9. What are their personal views regarding the foreclosure crisis? Is their attitude one of outrage as to what has been done to homeowners, the national and world economy or complacency with a wink at the Judge that this is a real obligation that the borrower owes but wants to get out of because of some procedural sleight of hand?
  10. What do they think of the financial bailout to Wall Street?
  11. Do they agree that the homeowners were targeted victims of a vast scheme to drain homeowners and investors of as much wealth as possible or do they think borrowers were the greedy ones trying to buy houses they couldn't afford?
  12. What do they propose to do for you? Do they have experts with whom they maintain relationships? Who are those experts? Can you speak with them?
  13. How much do they charge and how do they charge (by the hour, monthly, contingency fee, costs, expenses).
  14. What is the total amount they expect that you will be charged for this litigation? (Ignorance would indicate they haven't been doing this much or with much success).
  15. Will you be provided with copies of all correspondence and notes to file?
  16. Will you have telephone access to the attorney? How often? For how long?
  17. Will this attorney be representing you and working your file or an associate? If an associate, you want to ask the same questions regarding the above.

Listen carefully to the answers. Take notes. Go home and think it over even if it only for an hour. Don't let emergency conditions dictate settling for an attorney who doesn't understand securitized residential mortgages.

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