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New York Courts Mandate Legal Representation for All Homeowners Facing Foreclosure

The biggest thing that can be done to solve the foreclosure fraud crisis right now is to give homeowners the tools they need to challenge their cases in court. I sympathize with Dennis Cardoza’s anger that nothing has been done at the federal level, but to be honest, the day that the feds get involved in this is probably the day there’s a whitewash. So for the time being, at least, the courts are the best avenue for justice.

That’s why it’s so gratifying to see New York mandating legal aid for foreclosure victims. I hope all states follow them.

New York court officials outlined procedures Tuesday aimed at assuring that all homeowners facing foreclosure were represented by a lawyer, a significant shift that could give thousands of families a chance to strike a better deal with lenders.

Criminal defendants are guaranteed a lawyer, but New York will be the first state to try to extend that pledge to foreclosures, which are civil matters. There are about 80,000 active foreclosure cases in New York courts.

Under the procedures, which will be put in place in Queens and Orange Counties in the next few weeks and then across the entire state, any homeowner in foreclosure who does not have a lawyer will be supplied one by legal aid groups or other volunteer groups.

This would significantly level the playing field in the New York state courts. If foreclosure victims had the kind of money they’d need to competently contest their cases in court, they’d probably be able to pay off whatever it is the servicer says they owe. Under this new standard, foreclosure victims in New York can acquire a measure of equal access to the courts, and contest the clear fraud, servicer abuse and illegal fees that we’ve seen time and time again during this crisis.

The state legislature will have to agree to a $100 million appropriation for the courts to implement this for four years, which won’t be easy. With cash-strapped states slashing budgets, money is the real question for this. Congress has an authorization for $35 million in legal aid for foreclosure victims in Dodd-Frank, but hasn’t appropriated the money yet.

But if this could get through, you would see more decisions like this:

Frustrated by a dispute with Wells Fargo Home Mortgage and by his inability to get answers to questions, the West Philadelphia homeowner took the mortgage company to court last fall.

When Wells Fargo still didn’t respond, Rodgers got a $1,000 default judgment against it for failing to answer his formal questions, as required by a federal law called the Real Estate Settlement Procedures Act.

And when the mortgage company didn’t pay – does something sound familiar? – Rodgers turned to Philadelphia’s sheriff.

The result: At least for the moment, the contents of Wells Fargo Home Mortgage, 1341 N. Delaware Ave., are scheduled for sheriff’s sale on March 4 to satisfy the judgment and pay about $200 for court and sheriff’s costs.

Rodgers has even written his own headline: “Philadelphia homeowner ‘forecloses’ on Wells Fargo.”

The backstory here is that Wells wanted Rodgers to insure his house at full placement value, he refused, and they bought him forced-place insurance at a huge cost, applying it to his monthly payments. Rodgers successfully sued and has received over $1,000 from Wells so far, and now, there’s this sheriff’s sale because Wells has been unresponsive.

This is basically the only way to fight back against the lawlessness of the servicers. And borrowers need to be equipped with the tools to do so.

UPDATE: I got some guidance on this, and New York may be able to implement the mandate even without the funding. Under the New York Code of Professional Responsibility, all lawyers have a pro bono requirement. The judge could therefore assign lawyers to the pro bono panel of attorneys to represent a foreclosure victim. In addition, the judge could refuse to schedule a case until a lawyer is provided, and could ask the bank to pay for that provision. Judges have a decent amount of discretion here, as I understand it, and they’d be operating under a mandate from the chief judge to fulfill the order.

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David Dayen

David Dayen

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