What should I pay my attorney?

Posted on August 1, 2018 by Neil Garfield

Like all professions the practice of law mostly involves activities that the client never sees. And it is the quantity and quality of work by the attorney that is the largest factor in getting a good result.

The best result is having the foreclosure dismissed or vacated with findings of fact that make it virtually impossible for the foreclosing party to try again. To get that result you need experienced trial counsel who does all the work he/she thinks is necessary to achieve the goal. Those are at the top of winning food chain.

If you must pay less then you must lower your goal or buy a winning lottery ticket.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

See VIDEO TERA EXPLAINED AND VIDEO HOW TO USE TERA REPORT

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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There are some lawyers to whom I refer clients for representation.  Like me, they like to win — not merely justify a fee. They don’t consider “delaying the inevitable” to be a winning or even viable strategy, mainly because they don’t believe that foreclosure is inevitable. I consider their fees to be very reasonable.

On the issue of attorney fees, I have a story. When I first started practicing law I worked in the law office of what I then considered to be an “older” lawyer — i.e., a little more than 1/2 my present age. His wife was the bookkeeper. She was the one that had to argue with clients to pay the fees that were charged. Eventually people who were complaining or objecting said the obvious — that other lawyers charge less for the “same work” —  which was true. So she put up a sign in the waiting room that said the following:

“If you want nice fresh oats we can give them to you at a reasonable price. But if you are satisfied with oats that have already been through the horse, you can get them for a lot less.”

Moral of the story: It’s not the hourly rate you should be shopping for. And it’s not the length of time it takes to get there that counts. It’s the result. The only way to get legal representation is to pay for it. The question is cost of services vs cost of losing the home.

I hear many complaints from homeowners about how the lawyer didn’t do all the things that could have been done — discovery, motions, trial preparation etc. They are right in most cases that the lawyer did not do the work that now, in retrospect, the client would have liked. But in almost all cases, the problem was not with the lawyer; it was with the client who couldn’t pay or didn’t want to pay for the full work load.

To put numbers to this issue, if you are paying the equivalent of $100 per hour, don’t expect the lawyer to drop everything and concentrate for days on developing a defense narrative that the lawyer thinks he can “sell” to the trial court. If you are paying a few hundred dollars per month the result is the same. The lawyer owes you nothing except to provide the services you pay for.

If your retainer agreement calls for billing at $450+ per hour, you have every right to expect the full job to be done. Likewise if you are paying $2500+ per month, you can expect the full job to be done.

If you are paying $300 per month and expecting services worth $2500 per month you are mistaken. Those services will not be delivered which means that discovery, motions to compel, motions for summary judgment, depositions, trial preparation will either not get done at all or will be perfunctory.

I generally don’t litigate in court anymore. I serve as consultant, writer, researcher and expert witness on cases involving the securitization of debt. I have been actually licensed by government agencies and securities trade groups to do business literally on Wall Street in Manhattan and I did so. My hourly rate is $650 per hour for my time and $150 per hour for paralegal time. The fee is justified not only by our past successes but because we can actually accomplish more in less time and we win (not all the time). So while our customers are paying $650 per hour, in many cases it only takes an hour for me to do my work because I have so much experience with similar cases and fact patterns. Other less experienced lawyers either take much longer for the same job (thus increasing the cost of the project) or they might not take time to do what lawyers are really paid to do — think.

I am not engaging in a discussion about what our judicial system should look like. I am merely dealing with reality. In a capitalist economy where everything is measured in monetary value, everything happens because of money. It’s the fuel that pushes things along. Without the fuel, the horse simply lays down and takes a nap.

Filed under: foreclosure | Tagged: , , , , , , | 9 Comments »

Obama: A Bold U.S. Plan to Help Struggling Homeowners

Posted on April 1, 2010 by Neil Garfield

YOU DON’T NEED TO BE DELINQUENT TO SETTLE OR MODIFY. It might just be a good time to pick up the phone right now and call the servicer, trustee, or whoever is saying they have your loan (even though they don’t) and make a deal. Think about it first. Don’t be too generous to them and don’t be to greedy for yourself.  It’s true they don’t serve the home or the new mortgage, but if you can get the terms you need, and you get a court order confirming it, it won’t matter that the investors got ripped off in the deal. That’s not your problem.

Editor’s Note: Now that the plan is more fully described, hold the presses. It would seem that Obama got our message. This plan addresses all homeowners with securitized mortgages that were over appraised, and aims to keep them in their homes to avoid the obviously needless and lawless displacement that has been the rule up till now.
But don’t get lulled into complacency. The Banks are no more able or willing to give you that modification than they were before, with the possible exception of BofA. You still need legal weapons and ammunition, you most likely still need a lawyer, and you still need to get title quieted through a court order. It’s all possible if the settlement or “modification” agreement provides the right terms.
March 26, 2010

A Bold U.S. Plan to Help Struggling Homeowners

By DAVID STREITFELD

Will it work this time?

Once again, the federal government is adding to its arsenal of programs for troubled homeowners, seeking to help those who urgently need it while neither angering nor creating perverse incentives for those who do not.

The new measures, announced by financial policy makers at the White House on Friday, are among the boldest to date. They are aimed not only at the seven million households that are behind on their mortgages but, in a significant expansion of aid that proved immediately controversial, the 11 million that simply owe more on their homes than they are worth.

Some of these people, if the government plan works, will emerge with a house whose payments they can afford and whose new mortgage reflects its market value. Unlike many previous modification recipients, they would presumably be less likely to re-default, helping to stabilize a housing market that remains queasy.

“We’re walking that delicate balance to make sure these solutions are sustainable and not temporary,” said David H. Stevens, commissioner of the Federal Housing Administration.

It is a balancing act in numerous ways. If the plan falls short — and some experts were skeptical on Friday — the Obama administration could find itself having to start over yet again in six months or a year.

“The housing market is the Vietnam War of the American financial system,” said Howard Glaser, a housing consultant. “The federal government is in so deep, they have to keep ramping up to find a way out.”

The latest programs, together with foreclosure assistance efforts already in place, are aimed at helping as many as four million embattled owners keep their houses. But the measures, which will take as long as six months to put into practice, might easily fall victim to some of the conflicting interests that have bedeviled efforts to date. None of these programs have the force of law, and lenders have often seen no good reason to participate.

To lubricate its efforts, the government plans to spread taxpayers’ money around liberally. For instance, it had previously planned to give homeowners that sell their homes rather than let them go into foreclosure a “relocation assistance” payment of $1,500. The plan announced on Friday increases that amount to $3,000.

All told, the new measures are expected to cost about $50 billion. The White House was careful to stress that the money will come from funds already set aside for housing programs in the Troubled Asset Relief Program. There will be “no additional commitment of taxpayer dollars,” Michael S. Barr, an assistant secretary of the Treasury, said at the White House briefing.

Here is what the $50 billion is supposed to buy:

The simplest component of the plan involves assistance to unemployed homeowners. Mortgage companies will now be encouraged to reduce payments for at least three months and possibly six months while the homeowner pursues a new job.

To be eligible, borrowers must submit proof they are receiving unemployment insurance. The new payments will be 31 percent or less of their monthly income. The missing money will be tacked onto the loan’s principal.

A second and more complicated program is a requirement that mortgage servicers consider writing off a portion of a borrower’s loan to get it down to a more manageable level.

Borrowers in the government modification plan who owe more than 115 percent of the value of their home and are paying more than 31 percent of their monthly income toward the mortgage are eligible. The write-downs are to take three years, with the borrowers in essence being rewarded for making their payments on time.

The third major new program strays the farthest from the government’s previous approach. Borrowers who owe more on their homes than they are worth will get a chance to cut their debt — providing the investor or bank who owns the loan agrees.

Mr. Stevens of the F.H.A. said the program was “for responsible homeowners who through no fault of their own find themselves in a situation of negative equity.”

There is no official requirement that these homeowners be in distress, but it would probably make the investor more receptive to a deal. Whether homeowners will scheme to get into the program is one of the big uncertainties.

The investors will write down the loans to 97.75 percent of the appraised value of the property, at which point the F.H.A. will refinance them through new lenders. The F.H.A., which currently insures about six million homes, will insure the new loans as well.

If the homeowner has a second mortgage, as many do, the total value of the new mortgage can be as much as 115 percent of the value of the property. The F.H.A. will spend up to $14 billion to provide incentives to the banks that service the primary loan as well as the owners of the secondary loans. Some of the money will also provide additional insurance on the new loans.

Numerous parties will have to work together to make these deals fly. The primary loan might have been bundled into a pool and sold to investors during the housing boom. The investor must agree to cut the principal balance for a deal to work, and any bank holding a second mortgage on the property would have to go along, too.

The only incentive for the first lien holder is a quick exit from a loan that might ultimately default. Payments for second lien holders will be made on a sliding scale.

Early reaction to the refinance program among lending groups was less than enthusiastic.

“The magnitude of this program will likely be measured in the tens of thousands rather than the hundreds of thousands of borrowers,” said Tom Deutsch, executive director of the American Securitization Forum. Both banks and investors belong to the forum.

The Mortgage Bankers Association, which represents the banks that service the primary loans and own outright many of the secondary loans, warned that “each servicer will need to determine whether this is the best approach to help the individual borrower.”

The new proposals irked many people, who flooded online forums Friday. Some said those in trouble deserved their fate. Others asked why the government was propping up housing prices when many renters still could not afford to buy a house. And some wondered about the message these rescue plans were sending to those who resisted the housing bubble.

Dave Juliette, a software worker in Pittsburgh, is in the last group. He paid off his loan eight years ahead of schedule and now owns his house free and clear. “I’m a homeowner in a more genuine sense of the word than many of these people with mortgages,” Mr. Juliette said. “But I won’t be seeing a dime.”

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , | 8 Comments »

How to Negotiate a Modification

Posted on December 2, 2009 by Neil Garfield

See how-to-negotiate-a-short-sale

See Michael Moore — Modifications

See Template-Lawsuit-STOP-foreclosure-TILA-Mortgage-Fraud-predatory-lending-Set-Aside-Illegal-Trustee-Sale-Civil-Rico-Etc Includes QUIET TITLE and MOST FEDERAL STATUTES — CALIFORNIA COMPLAINT

See how-to-buy-a-foreclosed-house-its-a-business-its-an-opportunity-its-a-risk

My statements here relate to general information and not legal advice. Generally we are of the opinion that the loan modification programs are a farce. First they end up in foreclosure in 6-7 months — more than 50-60% of the time. Then you have the problem that you signed new papers that will at least attempt to waive the rights and defenses you have now. A trial program is a trial program — it is not permanent. It is usually a smokescreen for the “lenders” (actually pretender lenders) to appear to comply with the federal mandate and thus collect the bonus from the Federal government for entering into a modification agreement. And let’s not forget that the entities with whom you would enter into this “new” agreement probably have no rights, ownership or authority over your mortgage — they are only pretending. Their game plan is that they have nothing to lose and everything to gain because they never advanced any money on the funding of your mortgage.

So the very first thing you want to do is ask for proof of real documents that can be reviewed by a forensic analyst which will demonstrate they have the power to change the terms, and assuming they can’t produce that, their agreement that any deal you enter into with them will be taken to court in a Quiet Title Action in which they will allow you to get a judgment that says you own the house free and clear except for whatever the new deal is with the new lender. The New Lender is necessary because the REAL Lender is quite gone and possibly unidentifiable.

Any failure to agree to such terms is a clear signal you are wasting your time and they are jockeying you into default, which is the only way they collect insurance on your mortgage through the credit default swaps purchased on the pool containing your mortgage. They actually make money if you default because they were allowed to buy insurance many times over on the same debt. So on your $300,000 mortgage they might actually receive (no joke) $9 million if you default. That means they have far more incentive to trick you into default than to REALLY modify your mortgage terms. and THAT means you need to be careful about what they are REALLY doing — a modification or deception. If it’s deception don’t fall into self deception and wish it weren’t so. Go after them with whatever you can. The law is on your side as to title, terms and predatory and fraudulent loan practices.

Your strategy is simple: (1) present a credible threat and (2) demonstrate that you have knowledgeable people (forensic analyst, expert witness, lawyer).

Your tactics are equally simple: (1) Present an expert declaration or affidavit that raises issues of fact regarding the representations of counsel or the pleadings of your opposition, (2) Pursue expedited discovery (ask for things that they should have had before they started the foreclosure process — a full accounting from the real creditor/lender, documentation showing chain of title/possession, documentation regarding the money that exchanged hands from the bond investor all the way down the securitization chain to the homeowner) and (3) ask for an evidentiary hearing on the factual issues.

It would probably be a good idea if you went through a local licensed attorney who really knows this stuff — like a graduate of Max Gardner’s seminars or a graduate of the Garfield Continuum. This attorney can create some credible threats like the fact that youa re claiming, under TILA, your right to undisclosed fees on your mortgage, including the SECOND yield spread premium paid in the securitization chain when the pool aggregator sold the “assets” to the SPV pool that sold bonds to investors — investors who were the the sole source of cash advanced to make this nightmare come true. Picking the right lawyer is critical. Anyone who has not studied securitization, anyone who has not been working hard in the area of foreclosure defense AND offense, should not be used because they simply don’t know enough to achieve a satisfactory result.

My rule of thumb is that I don’t like any modification unless it has the following attributes:

1. Forgiveness of all late fees, late payments etc. No tacking on fees, payments, interest or anything else to the end of the loan.
2. Removal of all negative comments from your credit rating.
3. Reduction of the principal due on your obligation in the form of a new note or an amendment executed by all relevant parties. The amount of the reduction should be no less than 30%, probably no more than 75% and should average across the board something like 40%-60%. So if your mortgage was $300,000 your reduction should be between $90,000 (leaving you with a $210,000 obligation) and $225,000 (leaving you with a $75,000 obligation).
a. How do you know what to ask for? First step is on the appraisal. Had you known that the appraisal used in your deal was unsustainable, you probably would have taken a different attitude toward the deal and would have insisted on other terms. Assuming you had a zero-down mortgage loan(s) [i.e., including 1st and 2nd mortgage] then you probably, on average have spent some $15,000-$20,000 in household improvements that cannot be recouped, but which were also spent based upon the apparent value of the house.
b. So you look at the current appraisal and let’s say in your community the actual sales prices of homes closest to you are down by 50% from what they were in 2007 or when you went to the “closing” on your loan.
(1) Write down the purchase price of your home or the original appraisal when you closed the “loan.”
(2) Deduct the Decline in Appraised Value, which in our example is a decline of 50%. If you had a zero down payment loan, this would translate as the original amount of the note minus the 50% $150,000-$160,000) reduction in value. This leaves $140,000-$150,000.
(3) Deduct the $15,000-$20,000 you spent on household improvements. This leaves $120,000 to $135,000.
(4) Deduct your attorney’s fees which will probably be around $15,000, hopefully on contingency at least in part. This leaves $105,000 to $120,000.
(5) Deduct any other related expenses such as the cost of a forensic audit (which INCLUDES TILA, RESPA, Securities, Title, Appraisal, Chain of Possession, and other factors like fabrication and forgery) that should cost around $2500, and any expense incurred retaining an expert to prepare and execute an expert declaration or expert affidavit that should cost around $1000-$1500. [Caution a declaration from someone who has no idea what is in the document, or who has very little exposure to discovery, depositions, court testimony etc. could be less than worthless. Your credibility will be diminished unless you pick the right forensic analyst and the right expert]. This leaves a balance of $101,000 to $116,000.
(6) If you did make a down payment or cash payments for “non-standard” options then you should deduct that too. So if you made a 20% down payment ($60,000, in our example) that would be a deduction too so you can recover that loss which resulted from the false appraisal and false presentation of the appraisal by the “lender” who was paid undisclosed fees to lie to you. In our example here I am going to assume you have a zero down payment. But if we used the example in this paragraph there would be an additional $60,000 deduction that could reduce your initial demand for modification to a principal reduction of $40,000.
(7) So your opening demand should be a note with a principal balance of $101,000 with a settlement probably no higher than $150,000. I would recommend a 15 year fixed rate mortgage because you will be done with it a lot sooner and convert you from debt to wealth. But a mortgage of up to 40 years is acceptable in order to keep your payments to a minimum if that is a critical issue.
4. Interest rate of 3%-4% FIXED.
5. Judge’s execution of final judgment ratifying the deal and quieting title against he world except for you as the owner of the property and the new lender who might have a new note and a new mortgage or who might just walk away completely when you present these terms. There are tens of thousands of homes in a grey area where they have not made a payment in years, the “lender” has not foreclosed, or the “lender” initiated foreclosure and then abandoned it. These people should be filing quiet title actions of their own and finish the job of getting the home free and clear from an encumbrance procured by fraud.

If you want to “up the stakes” then add the damages and rebates recoverable for TILA violations for predatory lending, undisclosed fees etc. That will ordinarily take you into negative territory where the “lender” owes you money and not vica versa. In that case your lawyer woudl write a demand letter for damages instead of an offer of modification. The other thing here is the typical demand for your current financial information. My position would be that this modification or settlement is not based upon NEED but rather, it is based upon LENDER LIABILITY. And if they are asking for proof of your financial condition on a SISA (stated income, stated asset) or NINJA (No Income, No Job, NO Assets) loan then the mere request for financial information is a request for modification. That triggers your unconditional right to ask “who are you and why are you the entity that is attempting to modify or settle this claim?”

By the way the “rule of thumb” came from the old common law doctrine that one could beat his wife and children with a stick no greater in diameter than the size of your thumb. In this case don’t let my use of the “rule of thumb” restrain you from using a bigger stick.

Neil F. Garfield, Esq.
ngarfield@msn.com

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , | 49 Comments »

What to Ask Your Prospective Attorney

Posted on November 25, 2009 by Neil Garfield

NOW AVAILABLE ON KINDLE/AMAZON!

So you have decided to challenge your servicer as to whether they really have the right to collect anything from you and whether they have been turning over payments to the “proper party” (the real lender) and whether they have any information regarding the securitization of your loan, and an accounting for ALL money exchanged or paid in connection with your loan.

You’ve decided to challenge the pretender lender on whether they really own your loan and whether they “represent” any other entity that might be the REAL LENDER. You want to know who the real lender is and whether they have any enforceable right to collect money, enforce the note or obligation, or enforce the mortgage or deed of trust.

You have decided to hire an attorney, but like all fields, there are attorneys that are good at one thing and not so much on others. You want an attorney who is a crusader, who is not looking for a single silver bullet like “produce the note.” You want someone who believes in you and believes in your case. You want someone you can trust and whom you like. Big retainers mean big bills generally speaking unless they charge you a project fee that is all inclusive.

Yes this is a lot of work to do, but hiring an attorney who is only halfheartedly representing you with the notion that you owe the money and anything he does for you is enough, even if it is a minor delay. Keep looking. Don’t expect the first one you meet to be THE ONE.

And remember it is YOUR case, they didn’t screw you (the securitization players did that) and they don’t owe you anything. They spent a lot of time getting educated and trained to practice law and they are entitled to substantial fees compared with other jobs.

Here are the the things you should want to know and to get CLEAR answers that are verifiable from any attorney you interview:

  1. What type of practice do they have?
  2. Have they litigated property matters before? How many times? With what results?
  3. Have they litigated mortgage issues including foreclosures? How many times? with what results?
  4. Do they have any specialization, certification or degrees in real property law, securities, contract law, Uniform Commercial Code, appraisals, real estate closings? What are those and when did they get it?
  5. Do they have a working knowledge and experience litigating in Federal Court (bankruptcy preferred), State Court, jury trials, non-jury trials. How many trials have they been lead counsel? What is their record of success?
  6. How would they rate themselves in proficiency in motion practice, discovery, trial, cross examination?
  7. Can you get references from other clients?
  8. Will they litigate to win or just delay the proceedings?
  9. What are their personal views regarding the foreclosure crisis? Is their attitude one of outrage as to what has been done to homeowners, the national and world economy or complacency with a wink at the Judge that this is a real obligation that the “borrower” owes but wants to get out of because of some procedural sleight of hand?
  10. What do they think of the financial bailout to Wall Street?
  11. Do they agree that the homeowners were targeted victims of a vast scheme to drain homeowners and investors of as much wealth as possible or do they think borrowers were the greedy ones trying to buy houses they couldn’t afford?
  12. What do they propose to do for you? Do they have experts with whom they maintain relationships? who are those experts? can you speak with them?
  13. How much do they charge and how do they charge (by the hour, monthly, contingency fee, costs, expenses).
  14. What is the total amount they expect that you will be charged for this litigation? (Ignorance would indicate they haven’t been doing this much or with much success).
  15. Will you be provided with copies of all correspondence and notes to file?
  16. Will you have telephone access tot he attorney? How often? For how long?
  17. Will this attorney be representing you and working your file or an associate? If an associate, you want to ask the same questions regarding the above.

Listen carefully to the answers. Take notes. Go home and think it over even if it only for an hour. Don’t let “emergency” conditions dictate settling for an attorney who doesn’t understand securitized residential mortgages. It will only get worse that way.

Filed under: bubble, CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , | 4 Comments »

Mortgage Meltdown: AFTER the SALE

Posted on May 6, 2008 by Neil Garfield

SUING THE LENDER, MORTGAGE BROKER ET AL AFTER FORECLOSURE AND SALE

When it is all over and you have been evicted from your dream home, most people drop the matter and move on, being too distracted by their monetary problems to look back at the painful disaster.

What you should know, however, is that violations of Truth in Lending, fraud and other claims can be brought long AFTER the sale and judgment. 

The first step is to get a TILA audit and that is why we have a link to http://www.repairyourloan.com. So far in our search for competent people who are not out to steal even more of your money, they seem to be the ONLY people who truly understand the process, who have long track records of performing audits for all kinds of clients — government, financial institutions and individuals.

When you are done with your audit you go to a competent, experienced lawyer. If you can’t find one, we can help you.

Filed under: bubble, CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , , , , | 3 Comments »

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