Foreclosure? When is the Best Time to See an Attorney?

Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY

First in a series:

My law practice encompasses assisting and guiding many borrowers that are in financial distress and we take the position that Foreclosure is NOT a Solution.  Most borrowers come into the office for guidance and if they are lucky, planning for solution options once they realize that financial distress is a likely scenario.  However there is a significant trend this third quarter of the year where we are seeing many more people coming to us with foreclosure suits that were filed many months ago, and now it may be too late to discuss all of the solutions that may have been available to the borrower had they come into the office for a consultation before or at least at the beginning of the process.  Unfortunately, some lender representatives encourage their borrower to NOT seek the advice of an attorney or have attorney representation for a short sale or loan modification process - and the borrower often listens to that clearly self-serving advice.

These late comers fall into 3 categories:

  1. "I have a hearing next week before the judge to tell him my story."
  2. "I was served with a foreclosure complaint (lis pendens) 4 months ago".
  3. "What does this ‘Final Judgment of Foreclosure' mean?"

This article will address the first category.

"At the hearing I am going to tell the Judge my story."

I am amazed at the number of borrowers that call or come in and tell me that they have a time to speak to the judge in just a few days.  They are usually under the impression that this is a meeting, or maybe a hearing, where they can tell their story to the judge of how the lender promised them a loan modification.  Usually part of their story is that the lender also told them to not pay their mortgage for 60 or 90 or more days (see SHOULD I PAY MY MORTGAGE?) and now they have a foreclosure pending.

These people usually also have no clue that they are going into what is 99% of the time, the one and only time they will have the opportunity to see the judge in their foreclosure proceeding. What they also do not realize is that this hearing is NOT an opportunity to present evidence to the judge. 

The hearing is almost always a Motion for Summary Judgment.  This type of motion allows the judge to only look at the existing court file and consider (a) the legal pleadings (the complaint, exhibits and testimony such as a deposition) that are in the court file.  Often there are rules (depending upon the state your case is filed in) that require and limit the consideration of the judge to papers that made it into the court file a certain minimum number of days before the hearing.  In Florida, the Lender must have their side of the file complete 20 days before the hearing (see MOTION FOR SUMMARY JUDGMENT OF FORECLOSURE - DEFEATED! AND HOW I DID IT ).  NO TESTIMONY is taken at these hearings, which means the court cannot listen and consider any testimony of facts at this hearing - all it can do is see what is in the court file and then listen to argument from the lender and borrower based on and limited to what is in the court file. (A corporate lender needs an attorney but an individual borrower doesn't and can appear without one).

So, the client "telling my story" concept usually does not end up helping the borrower, and frankly, coming in to my office at such as late stage will probably result in my tuning away the potential client unless it is clear that there is some benefit that my representation will possibly bestow upon the potential client

When a person comes into the office and they show me a piece of paper that says that they already had their day before the judge (whether or not they went to the hearing does not matter) and it is a Final Summary Judgment of Foreclosure, it usually is too late to bring into discussion most of the alternative solutions that would have been available if the client came to me months earlier.  Now all that is available are fast solutions - a short sale for example, but at a price that will move the property within the next two weeks.  The problem is that the low price may not be conducive to the lender approving a sale at that price.  In the meantime, the clock is ticking on the date for the foreclosure sale to occur.  That date will be stated in the Final Summary Judgment of Foreclosure.  We have certainly been successful in getting the foreclosure sale delayed.  [Right now I am fighting to further extend a sale from occurring because the lender is actively determining if a short sale contract that was submitted to them 4 months ago at their suggested price is in fact acceptable - the original foreclosure sale was to have occurred 4 months ago.]  However, a borrower should proceed with caution such that it is an uphill battle to have a lender cancel an already scheduled foreclosure sale and delaying it is something that cannot be relied upon.  Chances are about the same as an amateur playing Roulette.

The sooner a borrower seeks help, the more solutions that may be available.  One thing should remain clear - Foreclosure is NOT a solution - it is a result that often times can be avoided.

Copyright 2009 Richard P. Zaretsky, Esq.

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!  New Website  See our easy to find articles at TABLE OF CONTENTS - SHORT SALE AND LOAN MODIFICATION ARTICLES.


Re-Blogged 3 times:

Re-Blogged By Re-Blogged At
  1. Janie Coffey 07/23/2009 12:11 AM
  2. Gabe Sanders 07/23/2009 12:20 AM
  3. Barbara Martino-Sliva, Top Producer 07/23/2009 03:27 AM
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Janie Coffey
First Coast Sotheby’s International Realty - Ponte Vedra, FL
Uniting Extraordinary Homes w/ Extraordinary Lives

Richard, your posts are always so informative!  thank you for sharing your knowledge and experience in easy to understand language.  I reblog many of your posts (and will this one) so my readers can benefit as well as we on Actice Rain do.  Thanks again!

Jul 23, 2009 12:11 AM #1
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

Richard, thanks for another great post.  I've reblogged this one.

Jul 23, 2009 12:21 AM #2
William J. Archambault, Jr.
The Real Estate Investment Institute - Houston, TX


It never ceases to amass me how people wait and let easily fixable problems go to long. I suspect some of these people die from paper cuts.

""I was served with a foreclosure complaint (lis pendens) 4 months ago".  I think we may have had this discussion before, but why the "lis pendens" isn't the recorded mortgage or "deed of trust" notice of a lien in FL? I always thought that the les pendens was used to create priority but your priority dates from the mortgage, alternately lis pendents clouds a title you hope to collect against.

Isn't the NOD more likely?

Good work! Reminds me of "A stitch in time..."



Jul 23, 2009 02:05 AM #3
Suzanne McLaughlin

This is the story I hear over and over.  People who just feel that the banks won't listen, and a good deal of the time, they won't.  However, sticking your head in the sand won't help either.  Getting good information as to how to proceed with your lender should be first and foremost on your list of things to do.  Thank you. 

Jul 23, 2009 01:29 PM #4
Wendy Rulnick
Rulnick Realty, Inc. - Destin, FL
"It's Wendy... It's Sold!"

Thank you, Richard. Anxiously awaiting the next 2 in the series!

Jul 23, 2009 02:12 PM #5
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Richard Zaretsky

Florida Real Estate Attorney
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