Housing · Access to justice
The Right to Counsel Nobody Was Deciding
New York law says a homeowner who shows up to a foreclosure conference without a lawyer has asked the court for one. In Brooklyn, those requests were not being decided. Here is how that changed.
Foreclosure is one of the few ways an ordinary person can lose everything they own in a civil case. Most homeowners facing it cannot afford a lawyer, and many do not know they can ask the court for one.
The Legislature anticipated that. Under CPLR 3408(b), when a homeowner appears without counsel at the first mandatory settlement conference in a residential foreclosure, the homeowner “shall be deemed to have made a motion to proceed as a poor person.” The court “shall determine” whether to grant it. If the court appoints counsel, it must adjourn the conference so the lawyer can appear.
The homeowner does not have to file anything. The law makes the request automatically. What it requires of the court is a decision.
What was happening instead
In 2023, homeowners in the Kings County foreclosure part were appearing at those conferences without lawyers in large numbers. According to the petition we filed, roughly 40 to 50 percent of homeowners at the conferences we documented had no attorney. But the deemed motions were not being decided. Conferences went straight to the merits: the status of the property, whether a loan modification was pending, whether the homeowner would agree to “release” the case toward judgment.
Carl Fanfair was one of those homeowners. He lived in his Bedford-Stuyvesant home with his wife, four children and his mother-in-law, lost his job during the pandemic, and was in the middle of a loan modification when the foreclosure was filed. He went to his settlement conference alone. No one decided whether he qualified for appointed counsel. Gloria Antoine, a Canarsie homeowner since 2004, had the same experience.
The case
In June 2023, Mr. Fanfair and Ms. Antoine filed a class petition under CPLR Article 78 in the Appellate Division, Second Department, against the Administrative Judge for Civil Matters in Kings County, the justice presiding over the foreclosure settlement conferences, and the Office of Court Administration. Fanfair v. Knipel, No. 2023-05048. They asked the court to require what the statute already required: that every unrepresented homeowner’s deemed motion be heard and decided.
I brought the case with Yolande I. Nicholson and co-counsel at the New York Civil Liberties Union and Mehri & Skalet PLLC. This was not a case anyone brought for money. It was about whether a statute written to protect people at risk of losing their homes would actually be followed.
The settlement
The case settled in March 2024. The court system did not admit wrongdoing, but it agreed to change how the law is applied:
- Decisions before conferences. Kings County judges will treat every homeowner who appears without a lawyer at an initial settlement conference as having moved to proceed as a poor person, decide that motion on the record, and adjourn the conference if they appoint counsel.
- Statewide rules. The Office of Court Administration agreed to adopt statewide rules, directives, procedures or forms so that these motions are heard and decided the same way across New York.
- Forms and guidance. OCA agreed to develop guidance and a form affidavit homeowners can use to support their requests.
- Notice. Homeowners in active, pre-auction Kings County foreclosures filed on or after December 1, 2022 were to receive notice by mail of their rights, and the court’s website carries the information in English, Spanish, Chinese, Arabic, Russian and Haitian Creole.
- Reporting. For three years, the court system reports quarterly on how many homeowners appear without lawyers, how many deemed motions are decided, how often counsel is appointed, and how outcomes compare.
Why it matters beyond Brooklyn
A right that depends on the defendant knowing to ask for it protects mainly the people who least need protection. CPLR 3408(b) was written to avoid that problem: the homeowner’s appearance is the request. The settlement makes the court system responsible for the decision, and the reporting requirement means the public will be able to see whether it is working.
It is also a reminder that systemic cases are not only brought against employers and landlords. Sometimes the institution that is not following the law is the court system itself, and the same tools apply: a class of people harmed the same way, a clear statute, and a remedy that changes the practice rather than one case.
If you are facing foreclosure in New York
- Go to the settlement conference. It is mandatory, and it is where the poor-person determination is supposed to happen.
- Say you cannot afford a lawyer and ask the court to decide whether you qualify for one. Appointment is not guaranteed, but you are entitled to a decision.
- Bring proof of income and expenses. It supports the request.
- Contact a housing counseling agency. The court is required to share your information with one, and they can help with loan modifications.
This article is general information, not legal advice, and it does not create an attorney-client relationship. Facts about the case come from the public petition and settlement agreement. Attorney Advertising. Prior results do not guarantee a similar outcome.