Foreclosure Defense
Currently in Lorain County, there are close to 80 foreclosure filings a month by banks against our neighbors, families, and friends who are struggling desperately to keep their homes. This comes to at least 2 families per day who face the loss of their home, their shelter, their memories, and the dwelling that serves as the center of their family’s lives. Our neighbors who try to save their homes can get caught in a papered bureaucratic nightmare.
Zachary B. Simonoff has been representing people who are facing foreclosure for over 10 years, with the focus on saving their homes. He has represented over a hundred families in foreclosure cases in Lorain County since 2007. In fact, Zachary Simonoff started and chaired the Foreclosure Section of the Lorain County Bar Association. This section has since merged with the Real Estate section that Zachary Simonoff also chairs. As part of his leadership in this field, he coordinates the annual Continuing Legal Education seminar for the Real Estate Section. Mr. Simonoff has also been an instructor on Foreclosure Law, as well as Landlord & Tenant Law.
Dual Tracking
What is Dual Tracking?
Many homeowners get caught in the practice of “dual tracking” when they fall behind on their mortgage. Essentially, Dual Tracking is where the Mortgage Servicer or Bank begins working with the homeowner on Loss Mitigation options while also pursuing a Foreclosure at the same time. Many Servicers and Banks blame the size and complexity of their operations for this practice, in essence claiming that one hand does not know what the other is doing. This practice can have devastating consequences for the homeowner.
Example:
A Homeowner falls behind on their Mortgage and begins the process of applying for Loss Mitigation (a Modification, Short Sale, etc.). Meanwhile, when the delinquency ages, the Bank refers the case to a Law Firm that specializes in seeking Foreclosures against homeowners. The Foreclosure is then filed. Meanwhile the Loss Mitigation specialist tells the Homeowner that, as long as they are engaged in Loss Mitigation, the home will not be lost. As a result, the Homeowner does not answer the lawsuit and the Bank obtains a Default Judgment, and the property eventually is sold at a Sheriff’s Sale.
In the above case example, the loss of the home would have been easily avoided had the Homeowner answered the Complaint; however, the Homeowner was concentrating on working with the servicing company or bank on the Loss Mitigation and ignored the legal process of the actual Foreclosure Complaint that the servicing company or bank filed. Ohio Courts have been faced with this very same scenario and have held that it is the Homeowner’s responsibility to file an Answer and defend the lawsuit even if they are engaging in Loss Mitigation with a Bank.
EXPERIENCE MATTERS
Zachary B. Simonoff Co. LPA and The McGookey Law Firm have represented hundreds of Clients and will not be fooled by the sleight of hand of dual tracking.
Papers and Documents to Bring to Your First Appointment (if you can)
If you were served with a Complaint, bring a copy of the complaint and all attachments.
Collect all documents and notes that you may have received from the Bank or servicer.
If you have participated in loss mitigation bring a copy of all loss mitigation packets you filled out, the supporting documents, fax cover sheets, and proof of mailing or receipt.
If you have had telephone conversations with Bank or Servicer employees about your mortgage, any notes of the conversations, dates, names of employees you spoke with.
If you have previously filed for bankruptcy the date and case number of the bankruptcy.
Do a household budget to have an idea of your financial situation, and how it will be affected by a house payment.
Make a list of questions you have for Mr. Simonoff that you would like answered at the consultation.
What to Expect at Your Consultation with Mr. Simonoff
As a result of the Co-Counseling Agreement between Zachary B. Simonoff Co., LPA and The McGookey Law Firm, the normal $50 consultation fee will be waived.
A free consultation is not to tell you how to go it alone. The purpose of the consultation is to determine if you are comfortable with Mr. Simonoff and The McGookey Law Firm and if they are comfortable with representing you and then to discuss cost of representation.
Mr. Simonoff will either meet with you alone or with a lawyer from The McGookey Firm. He/they will discuss the situation with you. He/they will perform a cursory examination of the Foreclosure Complaint and attached documents. He will attempt to answer any questions you may have about the Foreclosure process.
Due to the nature of litigation, Mr. Simonoff can make no guarantees as to the outcome of any case. When you hire Mr. Simonoff, it is to defend the lawsuit and for him to give you his best efforts. Loss Mitigation is many times a strategy in defending a Foreclosure Lawsuit.
If you are consulting with Mr. Simonoff prior to the Bank or Mortgage Servicing Company filing a lawsuit against you, Mr. Simonoff will explain the process for loan modifications and assist you with submitting a loss mitigation package for review by Bank or Servicer. What type of Loss Mitigation is eventually achieved is governed many times by how financially sound the client is. It may be a good strategy to use the money that you are saving on your home loan to pay down debt so that the debt to income ratio allows for loss mitigation. These decisions are made on a case by case basis.
If you decide to hire Mr. Simonoff, a Co-Counsel Fee Agreement will be prepared and the terms of the representation will be discussed with you prior to you signing the agreement. You will be given a copy of the fee agreement as well as additional forms to fill out.
COMMON QUESTIONS
What is the time frame for Foreclosure Lawsuit?
As a rule of thumb, in Lorain County, Ohio, if you do nothing, your house will be sold at sheriff’s sale in about seven (7) months. Also, unless you previously have been discharged in bankruptcy, the bank will take a default judgment that will most likely include personal liability for any amount owed above the amount received at the sheriff’s sale, after costs.
If you hire an attorney like Zachary B. Simonoff, he or she can represent you, prolong your potential departure from your home, and help you possibly save your home. With Mr. Simonoff’s efforts, the normally-quick foreclosure litigation against an unrepresented homeowner can be prolonged as he fights for his client’s rights while the homeowner and his or her family continue to live in the home.
The Attorney will answer the complaint;
Conduct Discovery;
Attend Status Conferences and Pretrials;
Respond to Motions and assert defenses; and
Oversee loss mitigation options.
Many times if a client is going to lose their home, Zachary B. Simonoff is able to get the Bank to walk away from a Deficiency Judgment (however there may be tax consequences). Recently, there have been some very favorable court decisions FOR the homeowner. These decisions may affect the way your case plays out, but . . . if you do not have an Attorney, none of that will matter since you may lose right from the beginning.
What is a Deficiency Judgment and how does is affect me?
A deficiency judgment is a judgment for monies owed above the amount received at the sheriff’s sale, after costs. The signer of the promissory note can be personally liability for that amount.
R.C. 2329.08 limits the collection of a deficiency judgment on a Mortgage to within two (2) years from the confirmation of sale. This time period stops if the creditor undertakes an action to collect on the judgment. After the financial and banking crisis in 2008, Banks as a general rule have not collected on these judgments. However, two clients have come in with letters from collection companies relating to debts sold by Fannie Mae and Freddie Mac for collections.
Even if you are losing your home, Zachary B. Simonoff has been able to reduce or eliminate the personal liability of his clients. This is important because even if you lose your home, you will not have the added stress of being pursued for a large debt . . . which could adversely affect your credit report.
FIVE THINGS TO DO IF SERVED WITH A FORECLOSURE COMPLAINT
1. Call an Attorney!!!!
When a person is Foreclosed upon, many call the Bank or the servicing company to attempt to resolve the matter. Once the Foreclosure is filed the Bank is NOT your friend; it is the Plaintiff in a Lawsuit that wants to take your home. The Bank has well-paid attorneys that are working to take your home. You should not face them unprepared. You need legal counsel.
2. Open a savings account, and “pay” your house payment into it each month.
Human nature tells us that if you pocket the housing payment as a “windfall,” you will eventually spend it on other items. Eventually, you will need a lump sum down payment for a modification, or if you lose your home you will need a security deposit for a rental unit. Either way, you will save a significant amount of money that you will need once the Foreclosure is over.
3. Collect your financial records.
Any workout or loss mitigation with the Bank will require you submit updated financial records. The sooner you collect the documents, the faster your Attorney can get them to opposing counsel. You can expect that the following will be requested by the Bank: past three (3) years Tax Returns, proof of employment and pay stub, Profit and Loss current year (self-employed), and copies of utility bills.
4. Document all contacts you have had with the Bank or Loan Servicer.
For your attorney to prepare a proper defense to the Foreclosure, he/she must be aware of all conversations and correspondence from the Bank.
5. Even if you are unrepresented, show up at all hearings in the case.
Most Foreclosures go through and are granted with a whimper. The person being foreclosed upon does not answer the complaint or show up at the Default hearing. If you fail to do so, the Bank will take your house by default. YOU WORKED HARD TO BE A HOMEOWNER. You should not just walk away from that huge accomplishment. YOU HAVE OPTIONS. At the very least, if the Bank wants your house so badly, make the Bank work for it also.