New York is the first state to guarantee legal representation to homeowners in foreclosure cases. Anyone facing foreclosure that does not have a lawyer will be provided one by a legal aid or pro bono group. Since New York handles foreclosures judicially, providing a lawyer for each defendant will make the proceedings more efficient and give homeowners much needed support when they go up against lender giants.
first tuesday take: Enacting a procedure like this will be much easier for New York than for California. Since New York is a judicial foreclosure state, the underwriter and not the homebuyer is the one initiating litigation. In a non-judicial foreclosure state such as California, bringing a foreclosure to court is complicated.
For one, an attorney cannot take his time to prepare and file a lawsuit and complete the court procedures necessary to get a hearing without charging what for most homeowners is a hefty fee. In order to get California homeowners the legal support they need to contend with lenders, legislation will need to be passed. [For more information regarding California lawyers and foreclosure, see the December 2010 first tuesday article, California lawyers won’t help with loan modifications.]
Procedures involving a judicially approved “foreclosure complaint form” must be implemented. The form will be filled out by the homeowner of a single family residence (SFR) and the court management of the case handled in a manner comparable to that of a small claims action. This would compel lenders to respond to judicial authority before they have the right to complete a foreclosure, and would help ensure no unnecessary or unjustified foreclosures occur because a homeowner was not as well-versed in foreclosure law as their lender.
Re: “New York courts vow legal aid in housing” from the NY Times