NewsMaker Interview: CJ Lippman on New York Foreclosure Settlement Representation Project

This blog is proud to present our second NewsMaker Interview, which is with Chief Judge Jonathan Lippman of New York.  It focuses on the recently announced Foreclosure Settlement Representation Project.  C.J. Lippman has long been a national leader in access to justice, so it is no surprise to see him focusing the New York Courts on this critical issue.

Richard Zorza: I think your new foreclosure project to provide legal assistance or representation at all foreclosure settlement appearances is a wonderful idea. How important is this and why?  Where did the idea come from, and how were you able to develop it into a concrete plan?

C.J. Lippman: Thank you, Richard, for saying it’s a wonderful idea. The conferences, which became mandatory a couple of years ago in foreclosures of one- to four-unit owner-occupied dwellings, have become the first opportunity for many homeowners to learn about their rights and protections, settlement options, and the foreclosure process itself.

For a homeowner who cannot afford a lawyer, it is a frightening and distressing experience to appear in an unfamiliar courthouse alone with so much at stake, especially when the adversary has an attorney (and the plaintiffs always do).  So providing representation at these conferences is extremely important to the homeowner, but it is also important to everyone else involved:  foreclosing plaintiffs, the court system, and ultimately the community.

During the hearings I conducted last fall around the state to assess the unmet need for civil legal services, I heard compelling testimony about the negative impact of homeowners appearing without a lawyer.  Perhaps surprisingly, some of that testimony came from the other side.  The general counsel of a major bank supported the provision of civil legal services to homeowners in foreclosure.  He said that the large numbers of unrepresented litigants were making the settlement process extremely inefficient, because the cases take longer to settle, and delays are a burden on the parties and the court system and add to the expense of the foreclosure.  With representation, not only is the homeowner better prepared for meaningful discussion but also the outcome is likely to be fairer.

According to the witness, providing counsel is beneficial from the business and financial perspectives, as well as from the social perspective because having homeowners remain in the property leads to more stable communities.  So I’d have to say that the idea for a foreclosure representation initiative arose not only from the concern that we are fulfilling our constitutional mission to deliver  access to justice for all, but it also was the right thing to do for everyone involved, and it would help us use our limited court resources much more efficiently.  We developed a plan to begin in two of our 62 counties, in partnership with civil legal services provider:  Legal Services of Hudson Valley (Orange County) and the Legal Aid Society (Queens County).  We expect to begin operations this summer.

Richard Zorza: Can you give us a sense of how you see this operating day to day, particularly from the point of view of the litigants?

C.J. Lippman: From the point of view of the litigants, they will not have to be in court alone and the scales of justice will be better balanced.  There definitely will be variations in the way the program will operate day to day at each location,  because the size of the caseload there and the number of local resources available will be determining factors.  One common element will be that the homeowner will receive advance notice of the mortgage documents to bring to the conference, contact information for relevant community resources, and how to link up with the attorney.   For purposes of the initial counties, the attorney will be on-site at the courthouse, but the particulars are still being formulated.

Richard Zorza: Obviously, legal services providers are key partners here.  Can you tell us a little more about their role, and how they will be able to manage these responsibilities in what is obviously a tough budget time for them too?

C.J. Lippman:  The legal services providers are key partners in designing the details of the day-to-day operations, because so much depends on their ability to use their existing resources creatively.  I know it’s a difficult financial time for everyone, and all civil legal services providers in New York are concerned about their overall funding for the future.  That is why our Judiciary Budget request for the 2011-2012 fiscal year included (a) $15 million in emergency funding to help offset the dramatic shortfall in the revenues of the New York State IOLA Fund, which is the state’s major funder for civil legal services, and (b) $25 million in new state funding for civil legal services for the “essentials of life” as recommended by the Task Force to Expand Access to Civil Legal Services in New York.  As defined by the Task Force, those essentials encompass housing (including evictions, foreclosures, and homelessness), family matters (including domestic violence, children, and family stability), access to health care and education, and subsistence income (including wages, disability and other benefits, and consumer debts).

The budget has now been finalized and we received a total of $27.5 million for civil legal services ($12.5 million directly for civil legal services and $15 million in funding through IOLA).  We are hopeful that the availability of IOLA and “essentials of life” grants will enable New York’s civil legal service providers to help more New Yorkers with their critical legal needs, of which losing a home to foreclosure is, of course, only one.  Incidentally, our foreclosure representation program is meant to complement and enhance rather than replace current state and local foreclosure prevention programs, which remain a key element of addressing the foreclosure crisis.

Richard Zorza: I understand that referral to additional pro bono and legal aid resources will be available for homeowners in cases that do not settle.  How do you see this working, and what needs to be done to make sure that referrals are available?  Are there new pro bono projects in the offing?

C.J. Lippman: Fortunately, the New York Bar has been very responsive to the need for pro bono legal services in foreclosure cases from the start of the crisis, and there are many programs around the state already in place to assist at the conferences or in defense of the proceeding or both.  However, there’s no doubt that we will need to encourage more pro bono help from the bar and from law school clinical programs, and we are working on that.  For example, I understand that the Legal Aid Society has received multiple offers of help not only from Queens County but from all five New York City counties. In Orange County, both the Orange County Bar Association of Mid-Hudson Women’s Bar are involved in designing a pro bono program there.

Richard Zorza: Are you going to be developing any tools or materials that will make it easier for litigants and lawyers to work together efficiently and effectively at these settlement conferences?

C.J. Lippman: Tools and materials will be developed, but since there will be local variations in the operation of this project, it’s difficult to develop universal tools and materials.  When the mandatory conferences began, we designed a model conference notification letter in partnership with legal services providers and, as I mentioned, a notice form like that, tailored to reflect the new project and resources available at each location, will surely be used.

Richard Zorza: Are you planning any research into the impact of this, perhaps to look at the impact on case outcomes, or maybe even to examine the larger consequences, such as whether spending money to finance a lawyer can help us to save money that would otherwise be spent on such services as public shelters or on dealing with the job loss related to homelessness?  I would think that this should improve not only the appropriateness of outcomes, but also people=s B and not just litigants= B views about the courts and perhaps even their willingness to ensure adequate funding.

C.J. Lippman: We have been keeping data on the conferences and the settlements reached for some time, because in 2009, the legislature mandated that Chief Administrative Judge Ann Pfau report annually in November on the adequacy and effectiveness of the settlement conferences.  Documenting settlements reached is part of that report process.  We will continue to keep the same kind of data, and it is likely that other information collection will be incorporated in some way in one or both of the two initial projects — again depending on resources.  As to the economic benefits, the Task Force’s report included data for 2009 from IOLA grantees on the savings in emergency shelter costs resulting from the combined effect of evictions avoided or delayed or foreclosures averted by providing civil legal services.  I expect that the Task Force will try to update that kind of data for their 2011 report later this year.

Richard Zorza: What about judges?  How do you think this will change the in-courtroom caseload, the overall feel of courtrooms, and what judges spend their time on?

C.J. Lippman: First I should clarify that because foreclosures have become a large percentage of our civil dockets, these conferences have also been conducted by quasi-judicial staff in some locations.  As to the effect on caseload, providing counsel will clearly be beneficial in one sense, because the settlement conference process will be more efficient and should free up judges to work on other cases on their huge dockets.  When homeowners are unrepresented:  conferences take longer — the process has to be explained to them — and more adjournments are necessary.  Counterbalancing any efficiencies is that our dockets are expected to continue to grow because it was recently estimated that we are not even halfway through the foreclosure crisis in New York, and our experience has been that the settlement conferences have been complex and labor intensive, even when both sides have counsel, and can involve as many as eight appearances.

Richard Zorza: I am particularly interested in the long-term lessons here.  Will there be data that can be shared with other states, and maybe that can also be used to develop similar approaches in other areas such as consumer debt, landlord-tenant, etc.  Or are there other lessons that you hope to learn, such as how best to distribute limited counsel resources B should there be a role for courts in this distribution, on either an individual or general basis?

C.J. Lippman: I hope other states will be able to benefit from our experience.  Of course, the Chief Administrative Judge’s 2010 annual report and the Task Force’s 2010 report are posted at nycourts.gov, and their 2011 reports will be as well.  Any tools or other materials that are developed will also be available.  As for the distribution of limited counsel resources, our objective is not to usurp the role of the civil legal services providers or pro bono programs in deciding how to use their resources. However, where we see areas of critical need involving access to justice — such as the foreclosure situation — we will try to develop collaborations and partnerships to address them.  I believe it is the ethical and moral responsibility of the judiciary to do so.

Richard Zorza: One of the things I find most interesting about the approach, is that it combines two general elements: 1) changing the overall court procedural process and 2) deploying an assistance resource at the time and place that can maximize the impact of the procedural change.  In this case, of course, the overall court process change is the Aaffirmation rule, requiring the plaintiffs’ attorneys to affirm the accuracy of the information in foreclosure complaint and the deployment is the settlement conference representation.  I wonder if there are any similar combinations or enhancements that have been suggested in this or other substantive areas.

C.J. Lippman:  The answer to that at this point is “no” — or I should say “not yet,”  because I am always open to suggestions that can help the Judiciary meet its obligation to ensure equal access to justice for all New Yorkers.

Richard Zorza: In the same long-term spirit, do you have any thoughts about how this project might act as a model for future court partnerships with legal aid and pro bono organizations?

C.J. Lippman:  I am hopeful that it will become another model along with so many of the other, ongoing partnerships the New York courts have developed with legal services providers and pro bono groups.  In the end, the application of this particular model depends on resources, and, as you mentioned earlier, this is a difficult climate for all of us.

Richard Zorza: Well, congratulations again.  We all look forward very much to hearing about the impact and lessons of the program.

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About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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