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Defending Your Home Foreclosure: An Interview with Sandy Emerson of Emerson Law Firm, LLC

By Sandy Emerson

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

I established Emerson Law Firm in 2000. Although the firm is a consumer law firm today, it wasn't always that way. In the early days of my practice, I collected business debts and did real estate and bankruptcy work, and our of-counsel attorney, Richard F. Kohn, was the Senior Vice-President and General Counsel of the nation's largest privately-held mortgage loan servicing company. After witnessing the rampant abuses in the debt collection and mortgage servicing industries, we both took an oath to serve the needs of consumers- particularly those victimized by fraudulent, abusive, and/or predatory business practices. We were later joined by like-minded associate attorneys who are dedicated to helping others. The members of the firm are proud members of the National Association of Consumer Advocates, and we all correspond with, and receive regular training from, the most passionate and experienced consumer advocates in the United States.

Today, our attorneys serve clients in the areas of foreclosure defense; loss mitigation, including loan modifications and workouts; real estate, including short sales; consumer bankruptcy (Chapters 7 and 13); and other general consumer matters, such as debt collection defense.

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

YES! At Emerson Law, we do it every single day. Unlike some "foreclosure defense" firms, we don't just litigate to buy time. We are a home preservation firm, and do everything possible to ensure that the homeowner who wishes to keep the home actually does so. Assuming the homeowner can afford a modified house payment, there's an excellent chance of home retention. Consumers are well-advised to avoid firms that don't know or understand the various loss mitigation options that are available to homeowners in distress.

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

Homeowners should see a foreclosure attorney right away. Many times, a loan servicer's failure to comply with state notice requirements or federal law (for example, the Fair Debt Collections Practices Act or the Code of Federal Regulations) can act as a defense to the foreclosure. Timeliness is important- many times, the failure to raise an issue can result in the forfeiture of the defense.

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

The most important thing that homeowners should know is that a foreclosure is not inevitable, and that it can be stopped. The homeowner can, and should, pursue other avenues to stop the foreclosure. Loss mitigation comes in a variety of forms, and (no matter what your lender tells you), isn't just limited to a deed in lieu or a short sale. In fact, these options are usually the very last ones that we recommend to clients.

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

Illinois law is unique in that a foreclosure need not be filed by the actual lender. A foreclosure can be maintained by a "mortgagee," a term which is defined by state statute. Additionally, Illinois law does not require mortgage assignments to be in writing, or that the mortgage be assigned to the mortgagee in order to foreclose. This is not the case in other states. Therefore, Illinois homeowners in foreclosure need to be aware that defenses that might work in other states would be completely ineffective in Illinois.

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 biggest one by far is when we have a homeowner who didn't come to us early enough. A lot of potential clients call us on the eve of sale and ask us if we can stop the sale. Unfortunately, in most circumstances, that's usually too late for us to help (unless we file a bankruptcy). And even if it's not, the work involved at that stage is usually much more extensive and will cost more, which doesn't make a whole lot of sense for the client who might need every penny to move.

If a homeowner wants to save the home, we have the most bargaining power when we are involved early in the case. Homeowners should be aware that the mortgage balance rises every single day while there is a foreclosure in progress. My advice for homeowners seeking a modification is to come see us while the balance is still manageable. Otherwise, the modification that we are able to secure will be simply unaffordable.

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

The best way to reach us is to give us a call at (708) 660-9190 to set up a consultation.

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