“Self-Help” and Legal Representation in Foreclosure and Landlord-Tenant Matters

self.jpg Our firm often receives inquiries from potential clients, many related to foreclosure and landlord-tenant matters. Often, an individual will inform us that they have been representing themselves in a Court proceeding, or are considering doing so, and will question us as to whether an attorney is necessary.

In New York State, individuals are generally permitted to represent themselves in Court proceedings, without an attorney. One exception to this is a corporation. Even if an individual is the sole owner of a corporation, corporations must generally be represented by counsel when they are a party to a litigation proceeding.

However, simply because an individual may representative herself in Court, does not mean that this is the best decision when confronted with an adversarial proceeding concerning potentially sophisticated legal issues, such as a foreclosure proceeding, or landlord-tenant matter. Many of the people who make inquiries to our firm will ask what benefit is gained from hiring an attorney, especially since there is an increased cost involved when attorney’s fees are incurred.

The answer to this question is very simple. Licensed professionals, such as attorneys, have a professional obligation to assist their clients and are subject to discipline if they fail to do so. Most people would not consider handling their own medical care or perform medical procedures on themselves. Litigation, while it does not involve one’s own health, is a complex procedure, and, in a confrontational situation, will probably result in an adverse result when an individual without an attorney is up against an institution, such as a bank or landlord, who has hired experienced legal counsel.

This does not mean that hiring an attorney will guarantee success in a litigation. It is of course possible that an individual will achieve a successful result when self-representing. However, an attorney experienced in foreclosure or landlord-tenant cases will be thoroughly familiar with both the law, both substantively and procedurally. For example, our firm was able to have a landlord-tenant case dismissed because the landlord’s attorney failed to serve a certain document when commencing the action. Obtaining such a dismissal involved knowledge both of the controlling statute, as well as the legal procedure necessary to bring this failure to the attention of the Court. An individual without such knowledge would have missed a significant opportunity to have the action dismissed on procedural grounds.

In foreclosure actions, there are many procedural hurdles for a lender to cross before a property can be sold at public auction. Even after auction, there are methods for potentially re-claiming foreclosed property. A law firm with experience in these matters will review both the original loan documents as well as the legal complaint and all motions brought, to ensure that they are in compliance with the law. A litigant has a much better chance to negotiate a favorable settlement when the lender is aware that the litigant’s attorney is knowledgeable and has raised legitimate legal defenses to the action.

Our firm has also encountered situations in which a litigant, when representing themselves, has put themselves in a worse situation, and now requires legal counsel. We have had several potential clients inform us that they represented themselves in Court, and had an adverse decision entered against them as a result. They then ask whether our firm can take up the case and achieve a better result. Of course, it is often difficult to obtain a reversal of an adverse decision from a Court or have a judgment removed. Had our firm been involved in the case from the start, it is likely that the adverse situation would have been avoided through our firm’s knowledge of the legal issues involved.

While hiring an attorney is no guarantee of a positive result, we recommend that all individuals involved in litigation consult legal counsel such as us at the commencement of a case, as they will insure themselves of an “equal playing field” in an adversarial situation.