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Defending Your Home Foreclosure: An Interview with Richard S. Alembik, Attorney at Law

By Rick Alembik

Tell us a little bit about your experience, firm history and the areas of law that you practice.

My law office is a top- (AV-) rated litigation firm that has been in business since 1991. I've been named a Georgia "Super Lawyer" for the last three years in a row. We began focusing our practice on real-estate related matters (construction, title, boundary line, breach-of-contract, residential, commercial, etc.) in the mid-1990s. Our clients have included major real estate title insurance companies, developers, builders, and (last but not least) homeowners. I've achieved some national recognition as an advocate for victims of wrongful foreclosure through lecturing to state- and national- audiences, and making television appearances on foreclosure-related issues. I have tried over 60 jury trials and handled hundreds of other motions and arbitrations in state and federal courts and in other fora. I've won two multi-million dollar jury verdicts.

Are there any ways that a homeowner can stop a foreclosure?

There are as many reasons for foreclosure and ways of stopping foreclosure as there are homeowners. No two cases are exactly alike. And no case should be treated in cookie-cutter fashion. For example, a bankruptcy filing may be an appropriate way to "stop" or suspend a foreclosure sale. But very often bankruptcy courts are called upon to treat only symptoms and not underlying problems. A lender will often get bankruptcy-court approval to "lift" a bankruptcy-stay of a foreclosure and proceed with foreclosure anyway within weeks of a bankruptcy filing.

Another example is the filing of a lawsuit in a state or federal (non-bankruptcy) court for wrongful foreclosure in which part of the relief requested is to enjoin the foreclosure sale.

Ultimately, the question that should really be asked is whether a homeowner should stop a foreclosure, or attempt to address the underlying issue that triggered the foreclosure. A scenario in which a homeowner has a temporary setback that can be overcome with new employment, debt restructuring, or some other approach is generally what we look for when evaluating whether and how to stop a foreclosure.

If a client's home is significantly "upside down" in the sense that the debt it secures far exceeds its fair market value we will typically explore with our client whether the home is actually worth preserving in light of the client's peculiar circumstances.

What should a homeowner do if the lender doesn't comply with all of the foreclosure requirements?

Given new and complex federal regulatory schemes that address loan servicing, opaque state laws that address foreclosure procedure, and loan- and real-estate documentation drafted in legalese, it's difficult for most non-specialized lawyers to properly evaluate and respond to most foreclosure-related issues these days. (Nor is it always easy for the specialized lawyers to do so.)

The homeowner should definitely avoid "urban-legend" or "silver-bullet" legal solutions and hire competent foreclosure defense counsel. If a homeowner lacks resources, the Atlanta Legal Aid Society has an excellent Home Defense Program for those who have qualifying incomes. Most "home-saver" programs are, frankly, scams, that accomplish little for their victims, and often put them deeper into the proverbial "hole." Consider the fact that lawyers are highly educated, trained, and regulated. If a homeowner wants to put their economic well being in the hands of a home-saver consultant of dubious qualifications then that is, of course, the homeowner's decision to make.

This is not to say that pursuing a loan- modification or mitigation procedure with one's lender is always a bad idea. However, I am of the firm conviction that it should be done with the assistance of competent legal counsel.

Is there anything that most homeowners don't know about foreclosures that they should know?

The main issues are the speed in which a home can be sold at auction under a "non-judicial" foreclosure proceeding. It can literally happen in as little as 30 days in states like Georgia. Given that a homeowner's rights under the newer federal regulations are often "pegged" to foreclosure dates, the failure to react in quick and decisive fashion to a situation in which a homeowner begins to fall behind on their mortgage obligations can critically limit their legal options.

How do state laws in your area affect the foreclosure process?

Because Georgia is a "non-judicial" foreclosure state a homeowner has to be proactive and to react quickly to a threatened foreclosure sale. In this legal environment there's little time to develop effective strategies and to deploy the most sensible measures. There is little room for error. Another concern is the tactic many mortgage servicers adopt of "removing" cases to federal court where the procedures and judges are much less forgiving than in state court.

What is one of the biggest regrets you've seen people have when it comes to a foreclosure defense? What would you recommend to help homeowners avoid this?

The first is waiting until the problem has "metastasized" beyond control such that when an expert is hired the homeowner's legal options are limited or entirely foreclosed.

The second is fighting to save a home that should not be saved- thus delaying the inevitable time in which the homeowner should start rebuilding their finances and creditworthiness.

The third is engaging in a "Temporary Payment Plan" with a loan servicer with the objective of securing a loan modification. More often than not these "TPPs" end up failing; and, the servicer will foreclose because the homeowner is technically behind on their mortgage- even though the homeowner was fully compliant with the terms of the TPP. The homeowner pursuing a TPP should be banking any amount required to bring the mortgage current under its original terms. (For reasons too complex to discuss in this response, most servicers actually have an economic incentive to foreclose.)

What's the best way for people to reach you and your firm?

We typically require a quick phone call to intake staff for a screening to determine (1) whether we have any "conflicts" between prospective clients or between a prospective client and an opposing party; (2) whether there's an emergent situation that could require immediate action, such as a bankruptcy filing or an application for a temporary restraining order; and (3) whether the prospective client's "profile" is an appropriate fit for our practice i.e., whether we can realistically expect to be able to help the client. If we believe that we can be of assistance to the prospective client then my office will set up a face-to-face consultation for which an advance consultation fee is required. At the consultation we check our client's "vital signs," identify potential problems that the client or the foreclosing lender may have, and determine how to best tailor any strategy to the particular prospective client before agreeing to assume representation.

Our website, which should be reviewed before calling us, can be found at www.alembik.com.

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