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Defending Against Home Foreclosure: An Interview with Atty. John F. Skinner, III of Skinner Law PLLC

By John F. Skinner III

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

The firm where I practice is located in a historic pre-civil war era home in downtown Manchester. We are called: Skinner, Rivard & Siekmann, and we provide general legal services including Family Law, Criminal Defense, Personal Injury, Wills, Trusts, and Estate Planning, as well as my forte- Consumer Protection and Foreclosure Defense.

My experience in practicing law began in law school as an advocate for the less fortunate in a legal services clinic. I also worked with the Assistant District Attorneys of Boston in the Suffolk County Major Felony Unit. After law school, I was fortunate enough to earn a position clerking with the Justices of the Massachusetts Superior Court where I worked closely with the Judges and observed the work product and courtroom skills of many different attorneys. After my term was up, I opened my law practice "Skinner Law PLLC" in downtown Manchester, NH. There, I gained notoriety for a successful lawsuit against Bank of America in a foreclosure defense case captioned: Parker v. Bank of America.

Skinner Law eventually became Skinner Rivard when I joined forces with local family law and criminal defense attorney Patrick Rivard. Last year, we merged with Milana Legal of Derry, NH and became Skinner, Rivard & Siekmann. Jenny Milana Siekmann focuses her practice on elder law and trusts and estates planning. We have two to three staff members helping us with the work-load, including Atty. Keith Mathews who is licensed in Maine.

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

The best way to stop a foreclosure is to take action before the auction is scheduled. As soon as, or before, you fall behind, contact your Bank or HUD to review your options. If they demand a lump sum payment as the only solution, you should review your situation with an attorney. If you end up having difficulty dealing with the Bank, then you should also contact an attorney for assistance.

You should always work with a HUD approved non-profit counselor, or an attorney licensed to practice law in your State. BEWARE of foreclosure rescue scam companies and charlatans on the internet and other well-meaning but ultimately un-licensed and unregulated businesses that seek to part you with your money with promises of preventing foreclosure. Beware of folks touting a "show me the Note" strategy. There are provisions in the law for lost or damaged Notes, and much of the MERS debacle, which is premised around "show me the Note" without more, simply will not carry the day in a New Hampshire Court.

There are several legitimate and successful tactics that may be employed to stop a foreclosure but in my opinion there is really only one good way to do it and that is to show the Bank that they stand to make more money, or lose less money, by modifying the mortgage loan instead of auctioning off your home. Others will file Bankruptcy for no other purpose than to halt the sale, and it does have that effect, but often times this only leads to a delay, a possibly needless negative mark on your credit report, and often having the Bankruptcy dismissed with no resolution for the mortgage and foreclosure.

You should also be able to halt a scheduled foreclosure by submitting a Home Affordable Modification Program ("HAMP") application more than seven business days before the scheduled auction- but that is fraught with peril and seldom works without the dual threat of litigation, simply because the Federal HAMP regulations lack proper enforcement mechanisms and the Banks often ignore them without consequence. Some Banks will temporarily halt foreclosure auctions for large lump sum payments, but again, this usually only has the effect of delaying the sale, funneling money to the Bank, and leaving the homeowner in a worse position six months later when the auction is re-scheduled, and they ultimately still lose their home.

I have developed a multi-faceted approach which we believe is the best system to stop a foreclosure, and keep you in your home. If I don't think that you will ultimately succeed in obtaining some work-out resolution that will allow you to remain in your home; I will tell you up front and provide some alternative options, such as a Deed in Lieu or Short-Sale.

What is Deed in Lieu or Short-Sale?

A Deed in Lieu or DIL, is basically a process whereby you grant the Deed to your home back to the Bank voluntarily so that they do not have to hold a foreclosure auction. In foreclosure they obtain a Foreclosure deed. Using this strategy, the Bank can save the costs of foreclosure, and you can schedule a date certain that works for you when you will be moved out of the home. In some circumstances, if you have legal claims against the Bank, or if you can move out quickly, we have even obtained compensation from the Bank for a DIL. Typically, we see anywhere from $1,000 to $3,000 for that.

The short-sale can also provide an incentive payment of $1,000 or more depending on a variety of circumstances which we won't go into here. I work with a network of Realtors and Short-Sale facilitators to aide in this process which is basically where the Bank agrees to allow someone to buy your home for less than you owe on it. This also avoids the auction, replacing instead with a "normal" Real Estate closing. Of course, the joke is that short-sales are anything but short because they can take a long time due to the added layers of complexity.

In both a DIL and a short-sale, it is a good idea to have an attorney involved so that you can be sure you will not owe the Bank on any deficiency from the loan- which can be collected up to twenty years later!

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

Typically, the Banks have lawyers conducting the foreclosure process and at this point, they are in compliance with the laws. However, it is very important to note that under NH RSA 479:25, if you fail to bring your claim prior to the foreclosure auction, you are barred from complaining about the invalidity of the sale thereafter. Other claims expire within one year. Again, this is why you need to take action as soon as you fall behind, and why it is important to consult with a lawyer. We get a lot of calls from people who are claiming their foreclosure was fraudulent in some way, but, one or two years after the fact, it is essentially cost prohibitive for most folks to bring that lawsuit and there is little we can do.

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

Mainly, I think it is the importance of taking action at the first sign of trouble. Work with your bank on your own first; you shouldn't need to pay anyone for help. But, if there are any promises broken, or if things aren't working they way they should, get in touch with a lawyer right away. We can take action to help and prevent a foreclosure before the auction is scheduled much easier than after it is scheduled.

Several years ago, right after the crash, the Courts were much more lenient and accommodating regarding enjoining an auction. At this point, you really want to be on the offensive with the Bank prior to the auction being scheduled, rather than being on the defensive trying to get the auction halted by Court Order.

How do state laws affect the foreclosure process?

State law is very important. I practice in both Massachusetts and New Hampshire. My wife and I live here in New Hampshire, but I grew-up in Massachusetts so I am very comfortable with the cross-border practice. And my associate Atty. Keith Mathews is from Maine, and he practices law in Maine as well as New Hampshire. Due to the major differences in State law, if you have to hire help for this; it should be with an attorney licensed to practice law in the State where your home is located.

New Hampshire is tough on homeowners, but if you have valid claims and sufficient income, the Judges are also fair. Massachusetts has a fairly new law that protects homeowners "An Act Preventing Unlawful and Unnecessary Foreclosures." In addition to that, they are a much more liberal State, and thus, tend to be more lenient with homeowners. Maine is a whole different animal. In Maine a foreclosure MUST be judicially approved before it can proceed. That is not the case in either New Hampshire or Massachusetts.

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?

Waiting too long to seek help, or seeking help in all the wrong places. It is heartbreaking when folks come to you after having paid an out-of-state company several thousand dollars and received no relief. Or when they've paid the Bank lump sums of many thousands of dollars and are still facing foreclosure. You have to resist the high-gloss marketing campaigns of these companies and the high pressure threats of the Bank and consult with a local lawyer about your rights and options. To avoid being taken for a ride, work directly with your Bank to establish a loan modification. You should not have to pay anyone to help with this. Unfortunately, it is the Banks' failure to follow the rules and regulations that caused the situation where homeowners need a legal advocate fighting for them to get the job done.

I strive my hardest to keep costs down for consumers; we try to get you relief as quickly as possible. The fact is though, that the Banks have Billions of dollars to fight for foreclosure, and litigating against them simply cannot be successfully accomplished without funding. A typical case runs anywhere from $3,000 to $5,000. Sometimes we can get some of that money back from the Bank in settlement, but often, once the homeowner has the modification they can afford, there is no longer any need to continue paying for legal services.

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

The best way to reach me is by email to AttorneySkinner@gmail.com or to leave a message on my direct line at 603.391.5668. Our office is located at 587 Union Street, Manchester, NH 03104. Or check out our website skinnerlawpllc.com. I'm required to mention that this could be considered Attorney Advertising and if so, then it is hereby labeled as such and Attorney John Skinner is responsible for its content. The foregoing is not legal advice but general legal information only.

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