Lassiter Notwithstanding: The Right to Counsel in Foreclosure Actions

Fast forward it’s getting much worse! Where are our rights heading??

ARTICLE: Lassiter Notwithstanding: The Right to Counsel in Foreclosure Actions

January / February, 2010

43 Clearinghouse Rev. 448

Author

By John Pollock

Excerpt

As I write, 250,000 new households are going into foreclosure every three months. 1 In the first three months last year, 22 percent of homeowners were “underwater” (i.e., owed more than their homes were worth), while a third of home sales in the previous year were either short sales or purchase of bank-repossessed properties. 2 Few signs of improvement are on the horizon: 1.5 million foreclosures occurred in the first half of 2009 alone, and some estimate that 8.1 million mortgages will be in foreclosure over the next four years. 3 The result is a tidal wave of cases swamping the state and federal courts–cases whose sheer volume and procedural irregularities strain the promise of due process.

The shortage of legal assistance during this crush of “foreclosure actions” compounds the due process concerns: no state provides a statutory right to counsel in any foreclosure proceedings, and consequently more than half of foreclosed homeowners are handling their cases without counsel. 4 Yet having an attorney is critical: while even a delinquent borrower may have a variety of options (e.g., mediation, modification, relief under federal law, various state-law claims and defenses) only an attorney can evaluate the options properly and advise the homeowner as to the most efficacious strategy.

Establishing a Fourteenth Amendment right to counsel in foreclosure actions requires an advocate to contend with the U.S. Supreme Court’s decision in Lassiter v. Department of Social Services. 5 Where there is no threat to “physical liberty,” by which the Court meant incarceration, …

Copyright (c) 2010 by Sargent Shriver National Center on Poverty Law
Clearinghouse Review: Journal of Poverty Law and Policy
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4 Responses

  1. I wonder if a plaintiff in foreclosure interferes with a defendant’s use of counsel through various devices if that would not reach the due process standard that Blackmun touched upon———-

    what if the facts showed that the plaintiff attempted to disuade defendant from use of counsel———-or in the course of the foreclosure process in some way interfered with defendant’s access to counsel

    is there state action in the form of an ongoing judicial process? surely the state is not required to provide counsel, but if court action some way deprived a defendant that incurred the cost himself-would that not be state action without due process?

  2. The majority of homeowners are not indigent, and would not need the state to pay for their defense. Moreover, there is plenty of legal aid help, of the likes of April Charney, who do excellent work.

    BTW, that’s why this country is in the shape it’s in, because the “goody two shoe” always wants government intervention!

  3. Thank you for citing Clearinghouse Review. The Review has published numerous articles on the effect of the foreclosure crisis on low-income people over the past several years. The full text of John Pollock’s article is available here: http://bit.ly/brfySL

  4. Thanks for the review. Hope that you have a article about – can bankruptcy stop foreclosure.

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