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Pro Bono Attorneys Help Bridge Gap in Forecloure Defense Cases

By Margaret Lambe Jurow – December 12, 2012

Founded in 1966, Legal Services of New Jersey (LSNJ) coordinates a statewide program to provide free civil legal assistance to low-income residents of the state. LSNJ operates a statewide legal hotline, provides direct representation to low-income people throughout the state, and provides assistance to six regional legal-services programs. LSNJ responded to the concerns of New Jersey residents with regard to mortgage foreclosure and predatory mortgage lending by forming the Anti-Predatory Lending Project in 2002, many years before the foreclosure crisis became front page news.

Historically, very few homeowners answered mortgage-foreclosure complaints and even fewer had the assistance of counsel when they did. Through the Anti-Predatory Lending Project, LSNJ and its regional affiliates represented homeowners in court and developed expertise in defending mortgage-foreclosure actions. By advocating on the behalf of New Jersey homeowners, LSNJ compiled a body of legal research, model pleadings, model discovery requests, and settlement agreements all related to foreclosure practice.

In 2007, more than 36,000 foreclosures were started in New Jersey compared to fewer than 25,000 in 2006. By 2008, the number of new foreclosures in New Jersey exploded to over 50,000 cases and continued to skyrocket to over 65,000 new cases in 2009 and a similar number in 2010. In December 2010, the court, in partial response to concerns about robo-signing, issued an emergent rule that required foreclosure plaintiffs to file a certification in each case, stating essentially that the information contained in the foreclosure complaint was true and accurate before proceeding to judgment or with a sale of the property. No injunction or stay was placed on the cases, only the certification requirement; nonetheless, lenders largely suspended their cases rather than file the required certification. Estimates of the number of suspended cases range from 45,000 to 100,000 cases.

Even now, almost two years later, most lenders have not yet filed the required certifications in cases that were pending in December 2010, leaving those homeowners in limbo. Lenders are expected to begin filing the required certifications over the coming months, restarting cases that have been voluntarily suspended for nearly two years. Meanwhile, new cases filed in and after 2011 have been moving through the court system quickly, generally being completed in about six to nine months. Though fewer new foreclosure cases were filed in 2011 and 2012, there is still an enormous amount of foreclosure activity in New Jersey, and foreclosure filings are expected to increase again soon.

Despite their best efforts, Legal Services attorneys alone could not respond adequately to the number of homeowners who needed help. LSNJ considered whether to appeal to the private bar to donate pro bono services. Initially, there was some skepticism about whether the private bar would respond. Foreclosure cases are time-consuming, complicated, and not well suited to handling by less experienced attorneys. Our best successes in pro bono matters had been in areas in which the time commitment was limited and in which less experienced attorneys could handle the matters independently and obtain valued courtroom experience. Foreclosure was different.

With fingers crossed, LSNJ decided to make an appeal for pro bono attorneys. LSNJ compiled training materials based on the experience in the Anti-Predatory Lending Project and developed a half-day training session geared to experienced litigators. LSNJ issued a press release announcing the training and calling for attorneys to come forward to help New Jersey homeowners save their homes from foreclosure. In exchange for this valuable training, LSNJ asked only that the private attorneys accept a case in the next year. The efforts were rewarded. LSNJ trained nearly 300 private attorneys to represent homeowners in mortgage-foreclosure cases and created a community of legal advocates for homeowners. The court even began to hold bench bar meetings for both lender and homeowner attorneys to discuss systemic issues and problems.

The pro bono volunteer attorneys came from throughout the legal community. Some were from small firms or solo practices. Others were from medium or large firms. They were bankruptcy and family attorneys, retired litigators and former prosecutors, real-estate attorneys, criminal-defense lawyers, lawyers of all sorts. A number of large-firm attorneys who could not take on individual cases due to positional or actual conflicts of interest, arranged for their firms to provide other support for the training sessions, such as conference rooms, copying, and hospitality. Those attorneys who did not feel that they could take on full representation of an individual client volunteered to work in-house at legal-services offices conducting client intake and counseling and assembling documents for potential pro bono counsel. And several attorneys with expertise in securitization, but not litigation, volunteered to work with legal-services lawyers in a consulting role or by performing legal research.

Pro bono attorneys and LSNJ attorneys meet periodically to discuss legal developments and strategies. The attorneys can participate in these meetings either in person or by webinar. Email allows LSNJ to provide up-to-date information to private counsel and is also an efficient way to place cases. To place a case, legal-services advocates and private volunteer attorneys compile a short synopsis of a client’s mortgage problems. Several clients’ problems are then pulled together in one email soliciting a volunteer to provide full representation to the client that is sent to all the trained volunteer attorneys. Generally, someone volunteers within a day or so. After a conflict check, LSNJ emails the file to the pro bono attorney and arranges for the client to meet the attorney. LSNJ staff attorneys serve as mentors if needed.

Legal-services colleagues in other parts of the country have had similar experiences with pro bono attorneys. For example, April Charney, of Jackson Area Legal Aid (JALA), reports that JALA has recruited over 500 volunteer lawyers who agree to provide at least 20 pro bono hours every year through their local legal-aid program. Tom Cox coordinates pro bono attorneys for the local legal-services organization in Maine on a volunteer basis. The Maine program, Maine Attorneys Saving Homes (known as MASH), is a joint project of Pine Tree Legal Assistance and the Maine Volunteer Lawyer’s Project. Maine pro bono attorneys have litigated cases through that state’s highest court. As in New Jersey, the private pro bono attorneys volunteering for foreclosure cases in Florida and Maine are often very experienced attorneys.

Many private attorneys have told me how much volunteering to represent homeowners facing foreclosure has enriched their lives. They report feeling intellectually challenged and renewed in their vocation. It’s not too late to volunteer to represent homeowners facing foreclosure. Despite the settlements reached by the 50 states attorneys general and federal agencies and the generally improving economy, the foreclosure crisis continues. Many foreclosure cases are still pending, and many more have yet to be filed. Homeowners still need help. Issues are shifting, but there are still enormous problems with servicing and the accounting on mortgage loans. Homeowners often see inaccurate principal balances and improper fees charged to their accounts and encounter bad faith in connection with loan-modification applications. Thus, homeowners continue to need attorneys to provide full case representation to them.

When the foreclosure crisis abates, we hope that the experiences that the volunteer attorneys have had providing pro bono assistance to homeowners facing foreclosure will inspire them to volunteer in other areas of law and to continue to help make “equal justice for all” a reality.

Keywords: litigation, pro bono, foreclosure, predatory lending, full representation, consumer protection

Margaret Lambe Jurow is vice president and assistant general counsel with Legal Services of New Jersey.

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