A Real Fix for the Poorest Victims of the Foreclosure Crisis

Also posted at The Hill’s CongressBlog, 3/1/2010.

As the foreclosure crisis moves from subprime to prime borrowers, the lives of some of the poorest of families in the country – rent-paying tenants in low-income communities – continue to be ravaged by the crisis. Too often, when landlords find themselves in foreclosure, their tenants are forced onto the street with little or no notice. Tenants, as distinct from homeowners, comprise 40% of the families facing eviction due to foreclosure, according to some estimates.

Despite a federal law enacted last year that included provisions to increase tenants’ protection from wrongful evictions (for example, by requiring owners to provide 90 days notice before a tenant’s eviction can proceed), real estate development companies and lenders continue to harass and illegally pressure tenants to move out. More than ever before, low-income tenants need the help of an advocate in the courtroom and at the negotiating table to ensure that their rights to remain in their homes are protected. In a complex legal environment, and without the help of an attorney, a tenant threatened with eviction is unlikely to know what his or her rights are, let alone how to pursue them. 

As a recent Brennan Center report, Foreclosures: A Crisis in Legal Representation, explains, empirical studies demonstrate that having a lawyer can make the critical difference in a range of civil legal disputes, at times increasing the individual’s chances of prevailing more than tenfold. For tenants in foreclosed buildings, a lawyer can press lenders to follow proper procedures and help to extend the time that families are able to remain in their homes. Of course, even with legal representation, not every family can expect to keep its home, but a lawyer can help to ensure that evictions proceed lawfully and can act as a much-needed check on the practices of lenders and developers in vulnerable communities.

But, such help is in short supply. Every day, low-income individuals are unable to get the legal assistance they need in their efforts to protect their homes, maintain custody of their children, obtain restraining orders against abusive spouses and secure the government benefits to which they are entitled. Fully half of the eligible individuals who seek legal assistance from federally funded civil legal aid organizations, nearly one million people each year, are turned away by those organizations due to lack of resources, according to a 2009 report on the nation’s “justice gap.”

Fortunately, a real solution is at hand. Legislation recently introduced in Congress would reauthorize and revitalize the Legal Services Corporation, the federal body charged with distributing federal dollars to local, non-profit civil legal services programs nationwide. By authorizing a federal funding level of $750 million (as compared to the current level of just $420 million), the Civil Access to Justice Act would help low-income people obtain the legal assistance they urgently need.

The legislation also would repeal several outdated federal restrictions that prevent low-income people from relying on federally funded legal aid lawyers for the same forms of key legal assistance that are available to clients of private attorneys. Notably, the Civil Access to Justice Act would repeal a restriction that prohibits legal aid clients from participating in class actions, even though these are sometimes the best option for halting widespread abusive practices that threaten tenants, consumers and borrowers.  

Although a class action may be the best way for tenants to protect themselves in a neighborhood where they are targeted for removal by nefarious landlords or developers, that option is in fact unavailable to the millions of clients of federally funded legal services programs today because of the restriction. As a general matter, tenants have a greater ability to fight unlawful practices when they proceed together, but when claims are pursued only through separate actions, courts can also be prevented from seeing the full scope of the unlawful conduct, providing relief sufficient to protect all those who are harmed by it, and deterring all those who are engaged in it.

Passage of the Civil Access to Justice Act would have other positive effects. It would enable lawmakers to benefit from the expertise of legal aid lawyers, an important voice that can help to improve communities for the underrepresented but that has been shut out from policy debate.  And, by eliminating the federal restriction’s chokehold on state, local and private legal aid funds, the Act would enable local authorities and legal aid programs to administer legal assistance in a more efficient and effective way, thus enabling legal aid staff to conserve more of their offices’ precious resources for providing direct legal assistance to the many individuals flooding into their offices.

The Civil Access to Justice Act is attracting widespread support. Over 150 national, state and local organizations have joined a letter urging Congress to pass the Act,  including many civil rights groups, faith-based institutions, and groups dedicated to access to justice (state bar associations and consumer, housing and disability rights organizations). President Obama, too, has asked the Congress to make several related reforms.

“Just as incarceration has become typical in the lives of poor black men, eviction has become typical in the lives of poor black women,” says University of Wisconsin sociologist Matthew Desmond in a recent New York Times article. Although the nation is facing hardship from the foreclosure crisis, it is our poorest neighbors who are suffering the most, not only as renters, but also in their roles as workers, breadwinners, and caregivers. Low-income people urgently need additional assistance from advocates to guide them through a crisis that has become, for so many, a legal crisis.

Enacting the Civil Access to Justice Act is a first step toward ensuring that low-income families facing a broad range of survival-threatening civil legal issues can get the legal help they need, benefiting individual families and communities across the country.