Facing Foreclosure Alone: The Continuing Crisis in Legal Representation

November 4, 2011

Recent data from state court systems show that a vast majority of homeowners facing foreclosure do not have a lawyer. This report accompanies a multimedia video series, which profiles homeowners across the country speaking about the experience of going through foreclosure alone and the difference it makes to have legal assistance on their side.

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Executive Summary

Four years into the economic downturn, massive numbers of families continue to face the prospect of losing their homes through foreclosure. For some, foreclosure may be inevitable. But for others, it can be avoided if they find the right help. Many borrowers have legitimate legal defenses to foreclosure that can only be raised with skilled legal advice and assistance. Likewise, lawyers can help homeowners more effectively negotiate the byzantine loan modification process.

Yet, most homeowners facing what will likely be the most significant legal event of their lives continue to do so without legal assistance. Many court systems – overwhelmed by the number of cases and number of unrepresented litigants – have set up mediation processes to give the two sides a chance to negotiate and perhaps find a way to refinance the mortgage. But these processes, too, suffer when lenders resist efforts to modify loans and homeowners lack representation to press the issue. The organized bar and civil legal aid groups have launched impressive efforts to train pro bono attorneys in foreclosure, but they cannot begin to meet the need.

As a result, most families facing foreclosure have no legal counsel representing them throughout the process. In some cases, homeowners are able get advice from loan counselors, legal aid groups, or pro bono programs before going to court appearances or mediation sessions. However, the data shows that most are not formally represented by counsel in their actual court cases or mediation sessions. For example:

  • In New Jersey, defendants in 92.9 percent of foreclosure cases in 2010 had no attorneys on record.
  • In Connecticut, defendants in 74.1 percent of cases in the state’s foreclosure mediation program did not have legal representation in 2010.
  • In Franklin County, Ohio, homeowners in 87 percent of cases scheduled for mediation did not have legal representation in 2009 and 2010

The result is a process gone awry. In the 20 states in which foreclosure is done predominantly through the court system, what was supposed to be an adversarial legal proceeding has become a blowout, with effectively no one on the other side to act as a check on the way foreclosure cases are brought. In states in which foreclosure takes place without a court proceeding, unrepresented homeowners have even less of a chance to raise questions about the foreclosure. Finally, homeowners who are able to make future payments on their homes may miss their chance of getting the loan modification that they are entitled to if they do not have skilled counsel to help navigate the process.

In contrast, as our accompanying video series, Fighting Foreclosure: Why Legal Assistance Matters, shows, when homeowners are able to obtain legal assistance, it can make the difference between saving and losing a home. This Issue Brief complements the video series and provides additional background on the crisis in foreclosure legal representation and its consequences.


About the Author

Nabanita (Neeta) Pal joined the Brennan Center in July 2010 as a Research Associate in the Justice Program. She works with the Program’s initiatives to increase low-income communities’ access to the justice system, and improve the quality and availability of legal services. Neeta is a 2009 graduate of Brown University and a former Fulbright Scholar.


Facing Foreclosure Alone