2.2 Challenges of Foreclosure Defense

Foreclosure defense is a complicated area of law. Missing a deadline or a defense could cost an individual’s home. Defending a state-court foreclosure lawsuit is also a malpractice trap for the unwary attorney.

Before committing to representing a client who is a defendant in a state-court foreclosure lawsuit, you must be sure that you have the time, the expertise, and access to the clerical capacity necessary to meet all critical filing deadlines. Otherwise, you should decline the representation and refer the prospective client elsewhere.

Do not expect the foreclosing creditor to consent to any extensions of time or deadlines to file pleadings or bonds or to delay the date of the judicial sale. Do not expect the usual professional courtesies from opposing counsel, such as acceptance of service or waiving formal service of process by the sheriff. The mortgage servicer (i.e., the foreclosing creditor) runs every aspect of the foreclosure process; opposing counsel in a residential foreclosure is more likely than not just a scrivener with little or no independent authority to make concessions.