Facing the prospect of losing your house has to be one of the scariest moments in a person’s life.  For many, they have sunk thousands, if not hundreds of thousands, of dollars into their home.  It’s more than jut an asset, a house becomes a home, a home contains memories and comfort, taking away a home can be absolutely devastating both emotionally and financially.

Combining the current economic crisis, strange home loans, and improper handling of paperwork by banks have created a foreclosure nightmare in many states.  Some states, like New York, require that foreclosures be overseen by a judge (23 states require a judge as well).  What this means is that every foreclosure has to be brought before a judge.  The judge will usually review the file (taking into consideration if the homeowner is the actual owner, how late they are on payments, and what the mortgage states) and make a ruling.

However, until now, a homeowner was only defended by an attorney when they brought their own.  This means that a homeowner either had to qualify for a special program or hire their own attorney.  Complicating the hiring of an attorney, New York holds an attorney personally responsible for the paperwork they file (usually an attorney is protected by their insurance carriers).  The result of this was simple, banks would hire attorneys, a home owner would come into court with no idea what was going on, courts would get tied up, and more often than not, the banks would win.

Change In The Law

Now, according to the NYT, New York seeks to try to balance the foreclosure proceedings by providing attorneys to homeowners.  Normally, the only time the state will provide someone an attorney is during criminal proceedings.  However, New York has reached out to legal aid groups and pro bono groups to help homeowners.  With 80,000 active foreclosure cases in New York, the legal aid groups have requested significant increases in their budget (about $100million more).

Will This Impact The Future Of The Court System?

While providing competent legal counsel for those who cannot afford it is a noble goal, some have worried that by providing attorneys for a foreclosure case could lead to an expansion of providing defendants with attorneys.  Generally, civil court will not appoint counsel for either party, if the courts now provide attorneys in foreclosure cases, why shouldn’t they provide attorneys for those seeking a breach of contract action or for property damages?  If the courts were to expand to provide every litigant an attorney, the state would likely be burdened with quite a large legal bill.

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