Lassiter Notwithstanding: The Right to Counsel in Foreclosure Actions
43 Clearinghouse Rev. 448 (January-February. 2010)
12 Pages Posted: 6 Feb 2015
Date Written: 2010
In 2009, 250,000 new households were going into foreclosure every three months. In the first three months of 2009, 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. Few signs of improvement are on the horizon: 1.5 million foreclosures occurred in the first half of 2009 alone, and some estimated that 8.1 million mortgages would be in foreclosure from 2010-2014. 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 fore- closure proceedings, and consequently more than half of foreclosed homeowners are handling their cases without counsel. 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. Where there is no threat to “physical liberty,” by which the Court meant incarceration, Lassiter created a presumption against the right to counsel in civil cases. Overcoming this presumption requires application of the three-factor test from Mathews v. Eldridge: the private interests at stake, the state’s interest, and the risk that the procedures used will lead to erroneous decisions.
Fortunately, even the Lassiter Court acknowledged that due process “is not a technical conception with a fixed content unrelated to time, place and circumstances.” Here I explain how the current national epidemic of foreclosure actions passes the Lassiter test, even absent any threat of incarceration.
Keywords: civil right to counsel, Gideon, foreclosure
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