Is your house worth unlicensed legal advice?
First, on the subject of unlicensed practice of law and notaries or paralegals you should know this. If the individual is not a licensed attorney in the state they cannot do anything else but proof your spelling and witness your signature. They are not supposed to even tell you what forms to fill out or file. Yes, there are some forms or motions that need to be filled out but how you fill them out and what you do afterwards is often far more critical than simply filing the form. This has been a big problem in Family Law and Immigration too and I suspect this is where a lot of these people come from. I'll explain more in a bit, but for now keep this in mind that they should not be doing anything more than witnessing your signature and literally crossing a "t" or dotting an "i."
As a side, you can get help, for free, in filling out loan modification applications and some limited advice from HUD approved housing counselors throughout the state. Here are some in Pinellas and other in Florida as a whole. These groups help explain what is needed, how it needs to be prepared, and in some cases what can be substituted (say a wage statement if w2 are not available). More importantly, they know when to say "go talk to an attorney" when your questions go beyond simply filling out the forms as the bank's are requiring. They do not give advice on fighting a foreclosure because that is not what they do. So, here I can give my blessing, but remember this advice should be free and from one of these agencies.
Now here's the harm in using this unlicensed practice of law. By definition, if they are telling you what to file, you have entered a defense in the case. The Judge will assume that by doing so you both know that a foreclosure had been filed against you (you have been properly noticed and served) that you understand the risk (that if the Bank establishes its case and you do not properly dispute it with admissible evidence you WILL lose your house and probably still owe money), and that if you do not bring up a particular issue or fact that the issue does not exist (i.e. if you fail to mention that you do not know who the bank is or how they own the note then that bank probably owns the note by your failure to point this out). So, if you file a motion that fails to establish the one defense that the Judge would have considered not only is it too bad for you now, but it's probably too bad for you later when you go up on appeal or finally get an attorney to help because you had to bring up these issues and you failed too.
Next, just because you ask something does not mean that the Court will make it happen. Sometimes you have to ask several times and make very specific arguments why the particular request is worth the court's time and energy and not just a red hearing to delay the process. So when this person tells you to file a motion or discovery request they can't do the rest which includes sending good faith letters, arguing the issue in court and doing follow up motions and hearings to either get what you're seeking or establish that the Bank is simply being evasive and not co-operating. Our legal system is argument and not form driven and no motion wins a case by itself.
All cases are not the same. Each foreclosure case I take requires several hours of looking through the documents filed, the client's documents, the public record, SEC filings, the internet and the bank's discovery responses to establish what that particular loan's story is. A Judge cannot assume just because a case is filed by someone like David Stern that there is something horribly wrong with the bank's title to the note and everything in the file could be made up. So you need to be able to tell your loan's story and point out where little red riding hood went off the path and into the woods to see where the wolves may be. I've had several cases where my client's only defense comes down to the bank not putting forward admissible evidence like the 4th DCA attacked in Glarum. So a form Motion to Dismiss would have done nothing in those cases.
Finally, I've also seen instances where people are told to simply ask the court for more time to get a short sale done. Admittedly there are many Judges who will respond positively to this. However, a Judge will only follow this to a point and only for so long as the Bank does not ask to move the case forward. The damage in this comes when you suddenly want to start defending the case. The problem is that, by saying you need more time, you may have effectively admitted that you owe this particular bank this money and that the foreclosure is otherwise valid (otherwise you would be fighting). The sad other side to this is that the homeowner could have raised their defenses and still pursued a short sale or modification while the defenses were before the court. There's nothing that prevents you from doing both.
So please be careful in what advice you accept and where you accept it from. It's your house and you should get the best licensed legal advice you can find.


Comments