After the number of foreclosure cases filed in state court plummeted during the past two years, the courts are now seeing a “markedly higher” rate of filings and coping with a rise in settlement conferences, according to an Office of Court Administration report.
Despite the sharp jump in filings, the Nov. 1 report also emphasized that an increasing amount of homeowners are getting legal representation during settlement conferences.
As of early October, there were almost 34,000 residential foreclosures filed in the court system this year. By the end of the year, filings could top 44,000 according to the report’s projections.
If the numbers bear out, that would mean more filings this year than the past two years combined, when there were 25,411 foreclosure actions filed in 2012 and 16,655 actions in 2011.
The rise in filings suggests lenders’ improved ability to vouch for the accuracy of their court papers in affirmations after two years of difficulties, said the report, drawing on data from October 2012 to October 2013.
The affirmation requirement was imposed by Chief Judge Jonathan Lippman in October 2010. Effective Aug. 30 a “certificate of merit” replaced the affirmation requirement for new cases. The new requirement is supposed to move cases more quickly.
“This report marks a period that has seen a tremendous spike in new foreclosure filings. As a result, the number of mandated settlement conferences has soared. …Despite these staggering statistics and challenges, the percentage of represented defendants still increased. Much progress has been made in addressing the burgeoning foreclosure docket that continues to rise,” said the report, noting foreclosures account for about one-third of the court system’s civil caseload.
In fact, the actions could weigh down the court docket for some time to come.
As of early October, there were more than 84,000 pending foreclosures—up 16 percent from the beginning of the year when there were more than 72,000 pending foreclosure actions.
In an interview, Judge Judy Harris Kluger, chief of policy and planning for the courts, said the rise could be linked to better compliance with the affirmation and an improved housing market.
“Certainly, the banking industry has been better able to comply with the attorney affirmation requirement,” she said. Kluger added that “although the lenders are in the best position to respond to the effect of the improved housing market, I think that’s fair to say that this is also a factor for the rise in filings.”
Kluger said the courts were “committed to adjudicating all matters and despite the scarcity of resources, we are committed to affording all the defendants settlement conferences and handling the cases.”
Jacob Inwald, director of Foreclosure Prevention Litigation for Legal Services NYC, said part of the rise could be explained by lenders’ attempts to bring the actions under “the old regime” of the attorney affirmation instead of filing a certificate of merit.
Moreover, he speculated filings could have been accelerated to avoid incoming regulations on mortgage servicers from the federal Consumer Financial Protection Bureau that are set to take effect in January 2014.
Whatever the reasons, the report shows that as filings have increased, so have the number of mandatory settlement conferences.
More than 76,000 settlement conferences have taken place so far this year and the final number is projected to be almost 100,000. About 77,000 settlement conferences were held last year.
“The conference process has stretched resources to their limits in the courts, as well as for the housing counseling agencies and legal service providers that handle these matters on a daily basis,” said the report.
In an interview, Suffolk County Administrative Judge C. Randall Hinrichs agreed conferences are stretching resources.
From last October to this October, his courts have experienced a 96 percent rise in filings, to about 5,300 in 2013 from almost 2,700 in 2012.
Other counties have seen triple-digit percentage increases in filings.
“The big immediate effect,” said Hinrichs was a “significant increase in the number of calendars that we are doing to get those conferences held” in the 60-day period after the case is filed with the court.
The surge comes after the county managed to dispose of more foreclosures than it took in. “It’s obviously a very significant increase. But look, we will deal with them,” he said.
The report noted representation rates at settlement conferences­—which could mean having an attorney, a supervised law school clinic student or a housing counselor present—edged up to 54 percent in 2013 from 51 percent in 2012. In 2011, that rate was far lower, at 33 percent.
“While this marks an increase from the last report, more needs to be done,” the report said.
The report said the rise in legal representation could be linked to the courts’ efforts to secure $40 million in funding for a wide range of civil legal services that included foreclosure representa- tion.
Inwald said improved representation rates could also be connected to the $60 million Attorney General Eric Schneiderman has directed to legal service providers and housing counselors in the wake of a settlement between 49 states and several banks.
Echoing the court’s view, Inwald said while the 54 percent number was encouraging, there were still a large number of homeowners going pro se.
“If you don’t have an advocate it makes it very hard and very unlikely to get a good outcome,” Inwald said, adding it was already tough enough to get a good disposition even with legal representation.
The report also discussed court efforts to address the accumulation of stalled foreclosure actions that were filed in the county clerk’s offices, but not with the courts because no request for judicial intervention and no affirmation had been filed.
The report said Supreme Courts in New York City and their five county clerks found more than 7,500 cases in this so-called “shadow inventory” and then took steps to push the cases forward. As a result, more than 800 RJIs have been filed in previously dormant cases.
The report said “while shadow inventories exist in counties outside of New York City, those County Clerks are not equipped to readily identify these cases and, more importantly, electronically share information in a usable format. Thus, only a handful of counties have been able to make any inroads with this inventory.”
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