Photos: YouTube Screenshot\Wikimedia Commons
BROOKLYN – Today, the New York Civil Liberties Union, Yolande I. Nicholson, P.C., Mehri & Skalet PLLC, and Valli Kane & Vagnini LLP, filed a class action lawsuit against the Office of Court Administration and justices of the Kings County Supreme Court for failing to implement a state law requiring courts to assess if homeowners who are facing foreclosure and cannot afford an attorney should be appointed free legal representation.
In 2017, homeowners of color in New York City were more than twice as likely to receive pre-foreclosure notices—the first step in foreclosure proceedings.
“Courts are putting vulnerable families at risk of exploitation and permanent displacement from their homes and communities,” said Terry Ding, staff attorney at the New York Civil Liberties Union. “Having an attorney can make a significant difference for homeowners facing foreclosure. With this lawsuit, we want to ensure New Yorkers have a fighting chance to save their homes. Because New Yorkers of color have long been the targets of housing discrimination, including redlining and predatory lending practices, they are overrepresented in foreclosure cases. Enforcing legal protections for homeowners in foreclosure proceedings is a racial justice imperative.”
New York law requires parties to a residential foreclosure action to participate in an initial settlement conference with the goal of resolving the case in a way that allows the homeowner to stay in their home. The law also requires the court to determine whether a homeowner appearing without a lawyer at the initial settlement conference qualifies for appointed counsel. But New York courts routinely fail to make that assessment, leaving homeowners unrepresented and more likely to lose their homes. In 2022, 45% of New York homeowners in foreclosure settlement conferences did not receive any assistance from legal counsel.
Filed in the Appellate Division, Second Department, the suit names plaintiffs Carl Fanfair and Gloria Antoine, two Black Brooklyn homeowners at risk of losing their homes. In both their cases, the court failed to assess whether they qualify for free representation.
“Our home means everything to our family. My children have many happy memories growing up here, running around the house before Sunday dinners,” said plaintiff Carl Fanfair, a homeowner in Bedford-Stuyvesant for more than 20 years. “We need to do everything we can to keep Black families like mine in their homes and make sure we can pass properties on to our kids. This starts with providing struggling families facing foreclosure a chance to have a lawyer.”
“Navigating the foreclosure process without a lawyer has been a confusing and stressful experience, not only for me, but also for my son and my brother, who live with me,” said plaintiff Gloria Antoine, who has owned her Canarsie home for almost 20 years. “Despite working two jobs, I fell behind on my mortgage payments during the pandemic and cannot afford an attorney to help me. Having an attorney on my side to explain my options and help me negotiate a workable repayment plan would make that process more bearable.”
Predominantly Black and Brown neighborhoods in Brooklyn and Queens, including Bedford-Stuyvesant, Brownsville and Jamaica, have the highest percentage of struggling homeowners in New York City, an outcome of decades of racist housing policies including redlining and exclusionary zoning. Most recently, these areas were significantly affected by predatory lending leading up to the 2008 financial crisis. Since the state’s COVID-19 foreclosure moratorium was lifted in January 2022, the number of properties in pre-foreclosure has significantly increased across the five boroughs, with Brooklyn the borough that experiences the most foreclosures citywide.
“Homeowners are always up against big law firms representing national banks, investors and loan servicers, always out-lawyered and out-matched when unrepresented,” said Yolande I. Nicholson, Esq., principal attorney at Yolande I. Nicholson, P.C. “Without a doubt, homeowners in foreclosure proceedings are even more vulnerable when they are unrepresented by an attorney, unable to assert their legal rights or secure a resolution of the case in mandatory settlement conferences, essentially rendered helpless to protect their homes and their families from illegal foreclosure judgments and auctions.”
“That foreclosures are happening across the city in proceedings where lenders have lawyers and homeowners don’t is a major problem,” said Joshua Karsh, partner at Mehri & Skalet. “Having a lawyer, at any point in the proceedings, reduces the risk of foreclosure – which is critical for homeowners, but also for their surrounding communities, for reducing the racial wealth gap, which foreclosures exacerbate, and even for lenders – because, often, foreclosures are more expensive than loan modifications. Albany passed a law requiring judges to consider appointing counsel for homeowners. But the courts aren’t complying. This lawsuit aims to fix that.”
NYCLU attorneys bringing the challenge include Terry Ding, Daniel Lambright, Ify Chikezie and Chris Dunn.
You can find materials on the case here: https://www.nyclu.org/en/cases/fanfair-v-knipel