Indigent litigants in New York residential foreclosure cases are discriminated against as opposed to indigent litigants in New York State Family Court

Residential foreclosures in New York are proceedings in the Supreme Court (the lower general jurisdiction court in this state).


Indigent defendants in such proceedings are allowed by law to have assigned counsel.


Yet, this "right" appears as a mockery of justice when one considers that by the time that counsel is assigned, the defendant is, most likely in default, failed to appear by answering the foreclosure complaint and, thus, waived numerous affirmative defenses, most important and frequently available of these are defects in standing and statutory notices.


When served by personal service, as it supposed to be happening in a Supreme Court civil action, the defendant will suffer a default unless he or she appears in the action by filing and serving the answer, affirmative defenses and counterclaims, if any, within 20 days.


If service was by substituted service, the deadline is 30 days from the day of service.


The first time an indigent foreclosure defendant is going to see a judge in a foreclosure action is at a mandatory conference which must be held 60 days from service of the action.


It is apparent that by the time of the conference when an indigent defendant in a foreclosure action can ask the judge for an assigned counsel, most likely, he or she is already in default and there is, basically, no point asking for any counsel.


At the same time, in Family Court service of a petition does not require a formal answer, and an indigent party may ask for an assigned counsel at the first appearance, which usually results in an adjournment of the case until the counsel is assigned and appears with his or her indigent client at the next court appearance.  No rights are lost where an indigent person fails to reply to a petition within 20 or 30 days and appears in court for the first time without counsel.


Nothing in the law can justify this basic inequality.


It is morally wrong to compare the value of child custody or visitation, or reputation and family integrity litigated in Family Court with the ability of the same parent to keep that roof over his child's head fighting a foreclosure proceeding.


I believe, New York State violates the Equal Protection Clause of the 14th Amendment by its failure to provide equal mechanism of assignment of counsel to indigent defendants in foreclosure cases, where the indigent pro se defendant is not allowed a grace period during which no default can be declared until the court, at its settlement conference 60 days after the defendant is served, assigns a counsel and gives that assigned counsel reasonable time to respond to the complaint and raise affirmative defenses and counterclaims, as the case requires.


Moreover, the discrimination goes even further, since, based on reports to me by some pro se appellants, Appellate Division 3rd Department does not recognize the right of an indigent foreclosure defendant-appellant to an assigned counsel on appeal, while in Family Court assigned counsel is available both at the trial and at the appellate level, for all cases but child support.


It is time for the New York State Legislature to end this discrimination.