Attorney Fees In A Mortgage Foreclosure Defense Case
Someone facing a mortgage foreclosure is feeling a lot of pressure – from the lender, from family, possibly from other creditors. The last thing I want to do as an attorney is to create additional pressure on a debtor trying to save their home. Unfortunately, many attorneys have fallen into a habit of charging excessive fees to help someone defend the foreclosure.
Many attorneys we know, unfortunately, charge clients a small up-front fee, something in the range of $500 to $1,000 or more, and thereafter charge monthly fees, typically in the range of $200 to $500 (although we’ve seen some arrangements where the client pays up to one-half of their mortgage payment to the defense attorney per month.
Under Rules Regulating the Florida Bar (Attorney Ethics Rules) RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES, we feel that these monthly fee arrangements are unethical and taking advantage of clients. The rule is too long to post here, but can be found on the Florida Bar’s website here.
The basic rule is that an attorney may not enter into an agreement for, charge, or collect a clearly excessive fee or cost. A fee or cost is clearly excessive when after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute an overreaching or unconscionable demand by the attorney. The Rule goes on to state that attorneys must refund any “unearned” fee at the conclusion of their representation.
The reason we believe that such a fee arrangement is excessive and overreaching is that the purpose of the foreclosure defense is to delay the foreclosure such that the homeowner can negotiate a loan modification or short sale, to ensure that the bank has provided all required documents to prove its entitlement to the foreclosure, and in some cases, to give the homeowner time to save a little money so they can move to another home. There will be many months over the course of a foreclosure proceeding where there is no activity in the case at all – so why would the attorney be entitled to a fee in those months? Did the attorney earn a fee in the months where there was no activity? Did the attorney apply retainer received in a month where there is no activity to a month where there is a tremendous amount of activity?
Every case is different and every fact pattern is different. In the majority of cases, however, Yesner Law only charges for services performed, in most cases on a flat fee basis.
For more information on mortgage foreclosure defense, please subscribe to the Yesner Law Podcast, on iTunes and Stitcher. If you prefer, please contact us to schedule a free initial consultation to discuss your options at 727-261-0224 or email me directly at shawn@yesnerlaw.com.
Shawn M. Yesner, Esq., is the founder of Yesner Law, P.L., a Tampa-based boutique real estate and consumer law firm that helps clients eliminate debt by providing options, so they can live the lifestyle of their dreams. We assist clients with asset protection, the sale and purchase of real property, Chapter 7 liquidation, Chapter 13 reorganization, bankruptcy, foreclosure defense, debt settlement, landlord/tenant issues, short sales, and loan modifications in Tampa, Westchase, Odessa, Oldsmar, Palm Harbor, Clearwater, Pinellas Park, Largo, St. Petersburg, and throughout the greater Tampa Bay area.
