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A Brooklyn Bridge?

By Leah Nelson
lnelson@judicialstudies.com
Posted 05-28-08

The City’s most populous borough was ahead of the curve in addressing the high default rate among residential foreclosures. Alas, its effort to date has largely been in vain.
 


In 1999, Joyce Reid bought a brownstone in Bedford-Stuyvesant, the Brooklyn neighborhood where she grew up – the first member of her family to own a home in New York. With initial monthly mortgage payments of $1,900, she kept her head above water.

But a few years ago, she started getting phone calls from agencies offering to help her refinance. She resisted at first, but “they keep calling and you get sucked in. It sounds great, but then you realize [your mortgage] is more than it was before.”

Reid doesn’t understand exactly what happened, but by the time her lender filed a foreclosure action, her monthly bill had skyrocketed to more than $4,000.

When she was served with the summons and complaint, Reid turned for advice to a friend who had dealt with the courts when he declared bankruptcy. He told her that she could oppose the foreclosure action herself.

For the benefit of such pro se defendants, Brooklyn’s Civil Term hosts a special Foreclosure Motions Part at 2 P.M. on the first and third Wednesday of every month. Instead of filing motions by mail and checking judges’ calendars to find out when to come in to argue, lawyers representing lenders (who are the plaintiffs in foreclosure cases) must appear personally on these days on the chance that self-represented defendants want to oppose them.

As with the rest of the state (see main article), the response rate of Brooklyn defendants is dismally low: Of the 91 motions heard on May 21, Reid was one of only three pro se defendants to file an opposition.

EXTRA EFFORT, MINIMAL PROGRESS

That Brooklyn’s Civil Term goes to so much trouble to help such a small fraction of total foreclosure defendants is largely the result of work done by Justices Carolyn Demarest, Herbert Kramer, and a few other like-minded Kings County judges.

In the early 1990s, Demarest's concerns about the low rate of reply by foreclosure defendants prompted her to begin looking into the papers underlying foreclosure filings. She found fraud at an alarming rate.

“There had been some very informal procedures, like on the courthouse steps, so to speak. We recognized that that was potentially fraught with fraud,” she says. “Judge Kramer and I used to sit together and say, ‘What are we going to do?’ ”

One thing they did was to meet with the plaintiffs’ and defendants’ bars to learn as much as possible about the process and where things could go wrong. They also formed a standing committee of judges that has rewritten foreclosure forms and standard orders, barred abusive bidders from auctions on foreclosed properties, and made recommendations to the State Legislature about how to improve the foreclosure process.

The revisions make foreclosures “a lot more labor-intensive,” says Justice Kramer. “Basically what we’ve done is bring what was an out-of-court process with occasional judicial intervention into a system where there are more controls at each step.”

Taking his cue from the foreclosure committee, Brooklyn Civil Term Administrative Judge Abraham Gerges is taking active steps to improve the process for pro se litigants. Among other things, he is working on a referral system with South Brooklyn Legal Services — whose address he gave Joyce Reid as she walked out of the courtroom after objecting to the lender’s motion against her.

The plaintiffs’ bar has reservations. “[I]n Kings County it’s taking up to 500 days to finish a foreclosure. And I’m not sure that in the most sophisticated financial city in the world that’s something to stand up and be proud of,” says attorney Steven Baum, who has been practicing foreclosure law for 22 years and is a member of the New York State Bar Association’s Foreclosure Task Force.

Prolonged foreclosure actions are problematic, Baum says, because “for every day that goes by that a loan doesn’t get paid, the borrower goes further into the hole.”

And one crucial area still eludes reform: Even though Brooklyn’s court rules require lenders to send notice to defendants beyond what is statutorily required, telling them in simple language when to come to court if they wish to oppose foreclosure, the vast majority still don’t show up.

Paul Lewis, Chief Administrative Judge Ann Pfau’s top aide who is now working to restructure the foreclosure process across the state (see main article), says “what [Brooklyn] faced . . . is educational for us.” Even as he searches for other ways to get defendants to respond to notice of foreclosure, Lewis says he doubts that the reason they don’t come to court in Brooklyn is that there’s “just too much paper and not enough people.”

As the state embarks on its effort to bring parties in for settlement conferences, Brooklyn is still a cautionary tale about the challenges ahead.

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