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Large Number of People Who Face Foreclosures Don’t Have a Lawyer

A new in-depth study by the Brennan Center for Justice released Oct. 6, 2009, shows that disturbing numbers of families face foreclosure proceedings without the aid of legal counsel.

October 6, 2009

For Immediate Release, October 6, 2009
Contact:          Jeanine Plant-Chirlin, 212–998–6289
                      Susan Lehman, 212–998–6318

New York – A new in-depth study by the Brennan Center for Justice released today shows that disturbing numbers of families face foreclosure proceedings without the aid of legal counsel.

Foreclosures: A Crisis in Legal Representation is the first national study of the dramatic overlap between the longstanding shortage of lawyers for the poor and the economic collapse.

"To a startling degree, our current foreclosure crisis is also a legal crisis," said Michael Waldman, executive director of the Brennan Center for Justice at NYU School of Law. “Many homeowners are losing their homes merely because they lack the ability to navigate the legal landscape of lending laws. This massive inequity is at the heart of the economic downturn.”

Among the report’s findings:

1.       In Connecticut, over 60 percent of defendants facing property foreclosure in 2007–08 did not have counsel;

2.       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;

3.       In hard-hit Stark County, Ohio, data suggests that 86 percent of defendants facing property foreclosure did not have counsel in 2008.

Many states and counties don’t even keep track of this information, but there is reason to think that these numbers reflect conditions elsewhere throughout the country.

This crisis has exacerbated an intolerable situation: even before the foreclosure crisis, 80% of the legal needs of America’s poor went unmet. This longstanding gap has created inequities that have helped kindle the economic downturn.

“To fix the foreclosure crisis and prevent another one, we must close the justice gap in America,” continued Waldman.

“Government sources confirm that lenders targeted African Americans and other minority group members for sub-prime loans,” said report author and Brennan Center attorney, Melanca Clark. “Not surprisingly, the legal crisis hits communities of color particularly hard.”

“Without a lawyer,” Clark continued, “a homeowner has virtually no ability to raise legal defenses based on lender abuse, or even to identify those abuses when they occur, given the complex nature of lending laws.  And yet millions of Americans in foreclosure are forced to face off against lenders who have a full arsenal of legal tools at their disposal, with no help at all.”

The Brennan Center recommends:

1.       Dedicating federal and state monies to pay for foreclosure legal assistance, particularly in areas hit hardest by the crisis; 

2.       Lifting the federal funding restrictions that impair representation of homeowners by lawyers in civil legal services programs that receive money from LSC;

3.       Expanding alternate dispute resolution mechanisms for families facing foreclosure; and

4.       Ensuring that families have an opportunity to consult with a trained housing counselor, and, if needed, a lawyer, in all foreclosure proceedings.

For more information or to schedule an interview with Melanca Clark, please contact Susan Lehman, 212–998–6318, or Jeanine Plant-Chirlin, 212–998–6289,