What a foreclosure defense attorney in Texas must do to stop a foreclosure.

Posted: February 4, 2011 in Foreclosure and Bankruptcy, Foreclosure Defense
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PLEASE NOTE: OUR FIRM IS *NO LONGER* ACCEPTING NEW CLIENTS FOR THIS AREA OF LAW.  PLEASE CONTACT THE TEXAS BAR FOR AN ATTORNEY REFERRAL.  IF YOU ARE AN ATTORNEY LOOKING TO TAKE ON FORECLOSURE CLIENTS, PLEASE CONTACT US.

133 hits on my website in just the past few hours… Foreclosures in Texas are spiking in February 2011.

Defending a foreclosure in Texas is a complicated and time consuming matter, but having an attorney who is intimately familiar with the mortgage industry and who has protected foreclosure clients before can really ease the process. When it comes to having your attorney go to court, make sure they KNOW THE ORDER in which they need to see the clerk and how to get in front of the judge to issue the temporary restraining order, and how and when to serve the trustee or the opposing counsel.

There is a lot of background work that the attorney must do before this happens. The attorney must gather all facts, write up all the paperwork (this alone takes a number of hours), have the client sign and notarize an affidavit, if necessary, all of which will be brought to the judge and filed with the clerk in the order that is needed to stop the impending foreclosure sale.

Before even writing up the paperwork, the attorney needs time to review your loan documents, including any default letters or correspondences regarding transfers of your mortgage from one mortgage servicer to another. Knowing what to provide is simple — upon signing the Cashman Law Firm, PLLC‘s fee agreement, we will provide you a fairly standard and easy-to-read form which you will fill out. Reading your form will provide the information we will need to know which documents to ask you for.

All in all, if the attorney is not careful, this can end up costing you lots of money in legal fees. The process itself is not cheap because it is time consuming for the simple reason that the research must be done efficiently to identify which of the many federal or state statutes or procedures have been violated (very frequently there are multiple causes of action because the mortgage servicer or lender routinely violates a number of statutes), and there are multiple sets of pleadings that must be drafted by the attorney which are very specifically tailored to the facts of your case. In addition, once all the research is done, the attorney must then run to the court, see the clerk, fill out the forms to file the paperwork, wait to see the judge as fast as possible to argue the client’s case and convince him or her to sign a temporary restraining order (“TRO”) (because most cases have severe flaws, the judges typically do sign most of the temporary restraining order applications). Once the TRO is signed, the attorney must then run back to the clerk, file the order, wait for a citation to be drafted, and then must get a process server or some other party to serve the opposing counsel or trustee giving them notice that they are not to proceed with the foreclosure process.

In summary, this is a complicated process, and most attorneys who do foreclosures in Texas do them for the banks. Early on when I came to Texas and I inquired why more attorneys were not doing this, I was told, “Texas isn’t called the ‘lender’s bar’ for nothin’.” Foreclosure attorneys are prevalent and numerous in Florida and other states where the laws are very friendly to borrowers and it is quick and easy for any lawyer to practice this field of law. Here in Texas, as I have written in previous postings, the law not friendly to homeowners, and it provides a “one-two punch” depriving the property owners of their homes.

Everything I have written, however, should not scare you. The Cashman Law Firm‘s goal is 1) to review your paperwork as quickly as possible to identify issues and flaws with regard to your loan, regardless of whether it is a mortgages, a home equity loan, a refinance loan, or a home improvement loan (the rules are different for each, but the issues are generally the same), 2) draft the paperwork and have the client sign and notarize their affidavit, 3) run to the court, initiate a lawsuit, and get the judge to sign a temporary restraining order, and 4) serve the other party the judge’s order which likely will tell them to cease and desist moving forward on the foreclosure until the underlying issues are resolved by the court.

Please let me know if you have any questions about the foreclosure process in Texas.

For Clients Outside Houston: While I will travel to areas outside Houston (e.g., Galvaston, Austin, Dallas, etc.), very often I will prefer to hire local counsel to take care of matters which are too far away.  For these cases, I would tell the client during our initial consultation that I would do all the work and I would write up the paperwork, but to minimize the costs to the client, I’d have a local attorney drive over to the court to make the filings on their behalf.

For Clients in New York: Even though I am licensed in New York and Texas, my office is in Houston, Texas.  As such, as I stated above, I would do all the work, but when it came to filing the documents in court, I would hire local counsel to make the filings for me.

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