Tuesday, April 5, 2016

Students Launch Pilot Program to Aid Residents Facing Foreclosure

For residents on the verge of losing their homes, facing a foreclosure proceeding in court is an experience fraught with anxiety and confusion. In New Haven, scores of borrowers find themselves in court alone in front of a judge each month, battling against a well-represented lender while trying to make sense of technical financial terminology and federal and state regulatory rules.

Students in the Mortgage Foreclosure Litigation Clinic at Yale Law School took note of this problem while observing the foreclosure docket at the New Haven courthouse over the years, struck by the inequity of the situation. And they wanted to do something about it.

“We would brainstorm what we could do to help, and of course, we couldn't take on every unrepresented homeowner who walked through the door unable to pay for a decent attorney,” said Allison Drutchas ’15, who worked in the clinic during her time at Yale. “Instead, we thought we could provide what's called limited-scope representation, where we and other volunteer attorneys could represent homeowners on a short-term basis, without committing to take on their entire case.”

After months of advocating the state of Connecticut to change the rules to allow for limited-scope representation, and working with court officials to sort out legal profession’s ethical details, the clinic got the green light to launch the Attorney for Short Calendar pilot program (ASC) this Spring. The program offers limited-scope representation to homeowners in foreclosure proceedings who otherwise would not have counsel. Limited-scope representation is a form of “unbundled” legal service in which an attorney represents a client for a specific proceeding, like a single motion, rather than for the entirety of a case.

James Mandilk ’17, a clinic student who was active in getting the program off the ground, said the ASC program guides homeowners through the process, finds ways to assist them, and more effectively communicates their stories and requests to a judge.

“We saw ASC as a chance to represent homeowners when they needed it the most—when they’re in front of the judge,” said Mandilk.

The pilot program serves residents in New Haven appearing at the foreclosure short calendar in the New Haven Judicial District, where the clinic estimates between 300-500 self-represented homeowners appear each year. The short calendar is a list of cases with motions or pleadings that require action by a judge.

Students began paving the way for the program more than a year ago, when the Mortgage Foreclosure Litigation Clinic joined with the Connecticut Fair Housing Center to lobby the Rules Committee of the state’s judicial branch, seeking to have limited-scope representation extended to all civil cases.

“Our biggest concern was assuring them that ASC would help unrepresented homeowners without imposing an unmanageable administrative burden on the court,” said Drutchas, now a tax associate at Honigman, a law firm in Detroit. “[The Judicial Department] was really receptive to ideas for increasing access to justice, and using limited-scope representation to improve access.”

Thanks to the group’s successful advocacy, the state committee modified the rules, effective January 1, 2016, to allow for limited-scope representation in all civil cases, including foreclosure matters.

With the new rules in place, Professor Jay Pottenger, the faculty director of the clinic, Jeffrey Gentes, a visiting lecturer who co-supervises the clinic, and Mandilk, met with clerks, court staff, and the judge who handles New Haven foreclosure matters. Court officials offered guidance on how to make the program work successfully and agreed to announce the opportunity to use clinical students for representation at the beginning of the short calendar call each week.

“The Connecticut Judicial Department has been a real partner in this unique, new endeavor,” said Pottenger. “Our students and clients could not have accomplished this expanded access to legal services without the court’s strong support.”

The ASC program is a natural extension of the work the clinic has been doing for years, which includes representing homeowners in litigation and filing amicus curiae on legal issues relating to foreclosures throughout the country. The clinic is part of the Jerome N. Frank Legal Services Organization at Yale Law School, which includes several clinics that provide legal representation to individuals and organizations in need of legal services but unable to afford private attorneys.

One of the Mortgage Foreclosure Litigation Clinic’s main objectives is to develop this area of law — for instance, clinical students have argued that lenders have a duty to act with competence when servicing homeowners’ mortgages. Another objective of their litigation work is to help homeowners who otherwise would struggle to represent themselves. In the past, the clinic has taken on homeowners for the entirety of their case, and they continue to do that. Now, however, students are also able to provide assistance to limited-scope clients on the days that they are in court.

“In that way, ASC is a logical outgrowth of our direct services work,” said Mandilk.

Mandilk said it is clear that clients — whether long or short-term, are grateful for help navigating a stressful and complex process with so much at stake.
“Clients have consistently expressed gratitude,” said Mandilk. “Because of our knowledge of the law and our familiarity with the process, we are frequently able to achieve a result that is better for the client than what we believe the client would have achieved without us.”

“With all [the clinic’s] help, I got a letter today confirming my foreclosure mediation petition for re inclusion was granted by the judge,” said Joseph Ceniccola, a New Haven resident who was assisted by the clinic. “This was all possible because of the Attorney for Short Calendar Program. I would highly recommend this program to anyone who has faced foreclosure and cannot afford an attorney. They worked hard and they knew a lot about the foreclosure laws. Now I have a second chance to save my house and I can’t thank them enough.”

And that experience is not only positive for the homeowner — it’s incredibly valuable legal experience for the students as well.

“There is no substitute for real-life adversarial argument before a judge,” explained Mandilk “Few law students—few young associates, even—have the opportunity to argue in front of a judge, let alone to argue several times in a semester,” he added. “ASC refines students’ abilities to quickly prepare and effectively present an argument. Those are valuable and highly transferable skills. The program also requires careful interview and client management skills since students must quickly elucidate and distill a large quantity of information.”

Pottenger agreed that the program gives students much more exposure to real world legal experience than ever before. “These cases have given our clinic students much more ‘in-court’ and ‘with-client’ opportunities than what they see in our usual mix of trial and appellate case,” said Pottenger.

“The need to quickly ascertain, absorb, and analyze the factual and legal aspects of a client’s situation creates great learning experiences.”

After the semester ends, the clinic will be evaluating the pilot program to determine how to move forward. Their short-term goals are to continue developing relationships with clerks, judges, and the other important stakeholders to seamlessly incorporate ASC into the courthouse routines. Students also hope to continue streamlining the program to increase consistency.

“This effort to provide legal representation to homeowners on the front lines of their fight against foreclosure is proving to be difficult and demanding,” said Pottenger. “But this work has also proven to be even more important than we had anticipated.”

Over the long term, the clinic hopes to inspire others to do similar work across the country.

“There are more pro se litigants now than ever before, but our court system is built on an adversarial model, in which advocates play a vital role,” said Mandilk. “In some areas of the law, limited-scope representation could be a partial solution to the problem, providing pro se parties with support when litigating their most pressing legal issues.”

“Given this value to the community, and the very real skills that both law students and attorneys can gain from such experiences, we hope to see other law schools and law firms opening limited-scope representation practices as a component of their pro bono programs.”