In the next two years, 2 million families who took out subprime loans will face losing those homes to foreclosure. Their families will suffer, neighborhoods will be devastated and local governments will lose significant tax revenue. Economists trace the problems back to careless and sometimes fraudulent mortgage lending practices. Some lenders coaxed first-time low-income home-buyers to take out mortgages, or long-time homeowners to take out second mortgages, without disclosing the high monthly rates they eventually would have to pay. Not surprisingly, the homeowners cannot afford the monthly payments, and when they fall too far behind foreclosure proceedings start.
Now policy-makers are asking how we could have allowed such a widespread financial disaster to occur. They point to lax federal and state regulators, irresponsible mortgage companies and a financial sector too reliant on the housing bubble to examine the mortgages in which it invests. There’s another cause, though, which is largely ignored: restrictions that have prevented federally funded civil legal aid lawyers from fully addressing the problem from its inception.
Civil legal aid lawyers, who work for non-profit organizations around the country, represent low-income people in the sorts of civil cases most important to their daily lives: housing issues, child custody, wage and hour law violations and consumer fraud. They are an essential part of our nation’s law enforcement apparatus, because they ensure that the businesses and government agencies that operate in low-income communities do so according to the rule of law. Civil legal aid attorneys also serve as a detection and warning system for problems plaguing low-income communities. As the people most familiar with the legal problems of the communities in which they work, often they are the first to learn of new legal abuses occurring in those communities. Over the years, civil legal aid lawyers have spoken out and prompted change when the police refuse to respond to domestic violence calls, when foster care agencies place children in unsafe foster homes and when local employers repeatedly fail to pay the minimum wage.
But since 1996, civil legal aid attorneys have been muzzled. Congress has barred them from using some of the legal tactics that are most effective at enforcing the law for entire communities. Civil legal aid lawyers who receive any Congressional funding through the federal Legal Services Corporation cannot call legislators to warn of new problems facing their communities and suggest legislative fixes. They cannot represent clients seeking to use the class action mechanism to compel repeat offenders to obey the law. They cannot use statutorily available fee awards to make it too expensive for repeat offenders to continue breaking the law. They cannot use private funds, donated by private foundations or individuals, to provide client communities with any of these services. And because their funding has eroded over the years, they cannot represent millions of people who seek help every year.
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These restrictions and inadequate funding have allowed the mortgage crisis to fester since the mid-nineties. Since then, civil legal aid lawyers have watched as predatory lenders targeted the communities they serve. They have successfully represented homeowners seeking compensation from law-violating lenders. But because they are barred by Congress from bringing a class action to require a lender to compensate all affected community members, they have watched helplessly as the same lender continues to strip equity from the homes of hundreds or thousands of other community members. The Legal Assistance Foundation of Metropolitan Chicago, for example, helped a 75-year-old woman keep the home she had lived in for thirty years, after a contractor took out a fraudulent loan in her name. Now they watch as the same contractor sends out mailings seeking new victims.
They, and other civil legal aid lawyers, have represented countless homeowners fighting foreclosure. But their foreclosure cases have dragged on for years, taking up valuable attorney hours, because legal aid attorneys cannot use the attorneys’ fee award mechanism Congress intended clients to use to persuade lenders to settle cases earlier rather than later. And they have turned away thousands of other homeowners seeking help, because they lack the funding to help. In September, with foreclosures in New York City at twice the level they were at in 2005, South Brooklyn Legal Services stopped taking any new foreclosure cases. In March, Jacksonville Area Legal Aid did the same.
The lawyers have hoped and prayed that legislators would finally understand the gravity of the situation and take action. But they haven’t been able to call those legislators to warn them and suggest legislation to fix the problem, because they are Congressionally barred from lobbying. Now that the markets are affected, and Congress is taking note, legislators are calling civil legal aid attorneys to testify at hearings examining the mess. What a shame the attorneys couldn’t call the legislators to warn them, years ago.
While policy-makers hold hearings, draft legislation, and tighten regulations, they should consider a cost-free measure: lifting the restrictions on civil legal aid lawyers handling foreclosure cases. And while they consider bailing out financial institutions suffering from the subprime scandal, or homeowners fighting foreclosure, they should consider taking the preventive measure of funding civil legal aid programs to fight predatory lenders.
