Foreclosures: A Crisis in Legal Representation

By: Melanca Clark and Maggie Baron. Published by: Brennan Center for Justice. Published in October 2009.

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The Brennan Center contacted 30 court clerk’s offices in counties with the highest rates of foreclosure in the ten most foreclosure-impacted states. Few tracked data on legal representation. Data was received from Stark County, Ohio; Queens, Richmond and Nassau counties, New York; and Connecticut. The Center reviewed existing literature on the effectiveness of legal representation for those facing foreclosure and existing impediments to representation.


In Connecticut, over 60 percent of defendants facing property foreclosure in 2007-08 did not have counsel. In New York, 84 percent of defendants in proceedings in Queens County involving foreclosures on “subprime,” “high cost” or “non-traditional” mortgages (which are mortgages disproportionately targeted to low-income and minority homeowners) proceeded without full legal representation. In Richmond County (Staten Island), 91 percent of such defendants were unrepresented, and in Nassau County, 92 percent were unrepresented. In Stark County, Ohio, heavily impacted by foreclosures, data suggests that 86 percent of defendants facing property foreclosure did not have counsel in 2008.

Six Ways Lawyers Protect Families in Foreclosure: (1) Lawyers Raise Claims that Protect Homeowners from Lenders and Servicers who Broke the Law; (2) Lawyers Help Homeowners Renegotiate their Loans; (3) Lawyers Help Ensure that the Foreclosure Legal Process is Followed Properly; (4) Lawyers Help Homeowners Obtain Protection of the Bankruptcy Law; (5) Lawyers Help Tenants When a Landlord’s Property is Foreclosed; (6) Lawyers Give Those Affected by Foreclosure a Voice in Policy Reform. Impediments to Foreclosure Legal Representation: (1) Legal Services Organizations Lack Funding for Foreclosure Representation; (2) Federal Funding Restrictions Undercut Foreclosure Representation by LSC-Funded Programs.

Recommendations: (1) Increase Funding for Foreclosure Legal Representation; (2) Remove Funding Restrictions that Undercut Effective Advocacy for Homeowners and Tenants; (3) Expand Access to the Courts and Other Dispute Resolution Mechanisms for Homeowners Facing Foreclosure Proceedings; (4) Recognize a Right to Consult with a Trained Housing Counselor, and, When There is Reason to Believe the Foreclosure Results from Lending Violations, a Lawyer. Report released under Creative Commons (CC BY-ND-NC 1.0) license.

Categories: Homeless, Housing, Housing, Legal Aid Attorneys, National, Researchers and Academics

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