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A blog from CityRealty (Links below will take you to the 6sqft site)

Carter's View

New York court officials outlined procedures Tuesday aimed at assuring that all homeowners facing foreclosure were represented by a lawyer, a shift that could give tens of thousands of families a better chance at saving their homes, according to an article in today's edition of The New York Times by David Streitfeld.

"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. In more than half of them, only the banks have lawyers," the article said.

"It's such an uneven playing field," said the state's chief judge, Jonathan Lippman, adding that "banks wind up with the property and the homeowner winds up over the cliff, on the street. It doesn't serve anyone's interest, including the banks," the article continued, adding that the judge also said that a lawyer for every defendant will also serve the courts' interests by making proceedings more efficient.

Under the procedures, which will be put in place in Queens and Orange Counties in the next few weeks and across the state by the end of the year, the article said, any homeowner in foreclosure who does not have a lawyer will be supplied one by legal aid groups or other pro bono groups.

The article said that "legal aid groups are expected to have foreclosure offices in the courts to handle the influx."

"After revelations last fall that several major banks had used improper methods to speed foreclosures," the article continued, "the courts are increasingly becoming a central battleground for people seeking to modify their loan and salvage their house. Simply responding to a foreclosure notice in court, homeowners have learned, can sharply delay the proceedings. That is a change from when the foreclosure crisis began. A few years ago, most foreclosed owners in New York and everywhere else did not show up at court proceedings and simply abandoned their homes."

"It was a 'paper process,' the New York court system concluded in a recent report," the article said, "with lenders inevitably the winners. New York now mandates settlement meetings overseen by a judge and attended by the lender, a sort of court inside the court. Homeowners are participating in large numbers but most of those without lawyers have little idea how to defend themselves. The cases are also overwhelming the courts. In several counties, half of the civil cases in higher courts are foreclosures."

"Legal aid groups will find the task of representing all foreclosure defendants easier if the State Legislature agrees to Judge Lippman's request for a $100 million increase in legal services programs spread over the next four years. Current financing for legal services in New York is about $200 million a year drawn from a variety of public and private sources," the article said.

New York, which is one of the 23 states where foreclosures must be overseen by a judge, has been more aggressive than most in trying to reshape the flood of housing cases. Lawyers pursuing foreclosure in New York are personally liable for the accuracy of the documents they represent. It is a requirement that some lawyers find onerous, but has been credited with significantly slowing the pace of foreclosures in the state.

"Judge Lippman, who announced the new initiative in his annual State of the Judiciary address in Albany, said he hoped that the lawyers would reach out to defendants," the article said, "even before they appeared in court. Citing the 1963 ruling by the Supreme Court that state courts are required by the Constitution to provide counsel in criminal cases to defendants who cannot afford their own, Judge Lippman said this was the right moment to extend that provision. 'Today it is an equally obvious truth that people in civil cases dealing with the necessities of life can't get a fair day in court without a lawyer,' he said."
Architecture Critic Carter Horsley Since 1997, Carter B. Horsley has been the editorial director of CityRealty. He began his journalistic career at The New York Times in 1961 where he spent 26 years as a reporter specializing in real estate & architectural news. In 1987, he became the architecture critic and real estate editor of The New York Post.
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