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TESTIMONY: NYS Legislature Public Hearing on Deed Theft

Posted on October 27th, 2022

 

New York State Legislature

Senate Standing Committee on Housing, Construction and Community Development

 

Public Hearing on Deed Theft 

 

October 27, 2022

Senate Hearing Room

250 Broadway, 19th Floor

New York, New York

 

Presented by:

Lisa Milas, Staff Attorney

 

Prepared by:

Lisa Milas, Staff Attorney

Kirsten E. Keefe, Senior Staff Attorney

 

Introduction

Thank you for the opportunity to submit and present testimony for the Senate Standing Committee on Housing, Construction and Community Development for the Public Hearing on Deed Theft. Empire Justice Center is a statewide legal services organization with offices in Albany, Rochester, Westchester, Yonkers and Central Islip on Long Island. Empire Justice provides support and training to legal services and other community-based organizations, undertakes policy research and analysis, and engages in legislative and administrative advocacy. We also represent low-income individuals, as well as classes of New Yorkers, in a wide range of poverty law areas including consumer law and mortgage foreclosure defense.

Empire Justice has been working on homeownership and predatory mortgage lending issues since the 1990’s. We work on behalf of homeowners who stand very little chance of winning their battles without professional assistance against the big banks and mortgage servicers who own the  majority of mortgage loans in this country. We also work on tax foreclosure, deed theft and foreclosure rescue scams, and neighborhood blight issues. This testimony focuses on the need for resources for homeowners across the state to prevent them from falling prey to deed theft and foreclosure rescue scams, and on increased consumer protections to combat deed theft and the myriad of scams targeted at New York homeowners.

 

Prevention is the Best Protection

The most effective way to combat deed theft and foreclosure rescue scams in New York State is to ensure to the greatest extent possible that homeowners do not fall prey to these scams. The New York State Legislature has passed into law two very important laws that inhibit scammers. First, the Home Equity Theft Prevention Act (HETPA) (NY RPL sec. 265-a) which became law in 2006 and was subsequently strengthened. The law addresses scenarios where someone intends to transfer a deed of a homeowner in default into their name to avoid the foreclosure with the promise to sell the property back to the original homeowner once they are able to obtain financing. Many New York homeowners at that time were losing hard-earned equity in their homes to these scams when the scammers either evicted the homeowner after the transfer of the deed, or took out a mortgage for the full value of the home leaving the homeowner with a loan they could never afford and the loss of all equity. In 2008, the Legislature passed a second historic bill establishing criteria for profiteers offering to help homeowners work with their mortgage loan servicers to cure a default for a fee, termed in the law as “Distressed Property Consultants.” (NY RPL sec. 265-b) We still see these scammers reaching into New York State but their numbers are diminished because of the law and efforts by the state to divert homeowners to other resources.

The biggest of those resources is the New York State Office of the Attorney General’s Homeowner Protection Program (HOPP) which provides annual grants to eighty-nine non-profit housing counseling and legal services program to provide direct assistance to homeowners in default and foreclosure. Empire Justice Center is one of two Anchor Partners contracted by the Office of the Attorney General (OAG) to provide oversight and technical assistance to grantees under HOPP. (The Center for New York City Neighborhoods is the Anchor Partner overseeing grants in New York City.) In that capacity, we oversee sixty non-profit housing counseling and legal services programs providing services in every county outside of New York City. HOPP has been in place since 2012, though prior to that, New York State provided funding for these services through the New York State Homes and Community Renewal starting around 2007.

Through our work with this vast network, we regularly hear from advocates about scammers who target homeowners on a daily basis. Companies comb through county foreclosure and lis pendens filings in and sell the data with the names and addresses of homeowners in foreclosure to folks looking to profit off of vulnerable homeowners in desperate situations. Solicitations come through the mail directly to these homeowners but you can also see ads on television, on the radio, on telephone poles or posted elsewhere in our communities.

But for the HOPP network of eighty-nine non-profit housing counseling and legal services statewide (including New York City), thousands more New York homeowners would turn to these scammers for assistance, and millions of dollars in equity that should remain in the hands of our citizens would be lost to this bottom-feeding industry. Falling behind on a mortgage is not only incredibly distressing, but it also throws the homeowner into a complicated process of having to work with their mortgage servicer to find a resolution. There are programs and potentially workable solutions available to assist homeowners but they often differ depending on the type of mortgage loan one has (whether it be FHA, VA, SONYMA, a loan held by Fannie Mae or Freddie Mac, a reverse mortgage or a conventional mortgage) or who one’s mortgage servicer is. On top of the confusion, working with a loan servicer requires some level of expertise and is typically time-consuming and frustrating. If the loan goes into foreclosure, the process becomes even more complicated and confusing having to navigate the lawsuit and court processes.

New York State has done an incredible job – the best in the country we would argue – investing in services for homeowners through HOPP that are provided by trained, trusted professionals free of charge to the homeowner. Among the sixty HOPP grantees Empire Justice oversees in all counties outside of New York City, HOPP has the equivalent of about 140 full time employees working with homeowners through the default process to avoid the loss of their homes to foreclosure. HOPP advocates are successful in many, many ways which we would welcome the opportunity to elaborate on, but for purposes of this hearing about deed theft and scams specifically, the greatest success of the HOPP network is that we prevent homeowners from falling prey to scammers. There is no question that if HOPP services did not exist, more vultures would descend upon homeowners in New York State, and more homeowners would lose thousands individually, millions collectively to these enterprises.

The HOPP network is also vital to providing assistance to homeowners when they do get scammed. HOPP provides funding to thirty-one legal services organizations, many of which have been engaged in complex cases against companies that have scammed our homeowners. These lawyers recover monetary damages for homeowners to return much needed cash to their pockets, and in the more extreme cases, they work to get the deed back into the name of the homeowner and reinstate their homeownership interest. In addition, the HOPP advocates who are on the ground are the first line of defense in identifying scammers and providing information to the OAG through its Protect Our Homes Campaign, developed in partnership with The Center for New York City Neighborhoods. We regularly feed information through this Campaign to the OAG so that it can tract, investigate and prosecute bad actors. HOPP agencies have also fed cases to law enforcement for criminal prosecution when warranted.

For all these reasons, our first recommendation to the Committee is to ensure that funding is continued for HOPP in next year’s budget, and to stabilize funding for HOPP for future years. HOPP had dedicated funding from settlements for the first few years but since about 2015, our funding has been uncertain from year to year and we have engaged in vigorous campaigns to ensure HOPP is included in the Budget. We are incredibly grateful on behalf of New York homeowners for the Legislature’s continued commitment to ensuring these services are on the ground, and particularly grateful for the first increase in a decade to our state funding that we received this year. It is always an uncertainty, however, takes a lot of work and time on the part of advocates to lobby each year, time that could better sent serving more New Yorkers. This year we will be asking for $40 million and we continue our ask that New York State identify a stable source of funding for HOPP into the future.

 

Ensure Existing Laws are Enforced and Promote HOPP

Our second recommendation to combat deed theft and other mortgage related scams in New York State is to ensure that two laws we have are adhered to and enforced. These laws are specifically designed to direct homeowners to the free assistance provided through the HOPP network of non-profit housing counseling and legal services providers. The first is the 90 day pre-foreclosure filing notice (NY RPAPL sec. 1304) which requires mortgage servicers to send a notice to homeowners at least 90 days prior to the initiation of a foreclosure. The notice informs the homeowner they are behind and warns of a lawsuit if the default is not cured soon but more importantly, servicers must attach a list of at least five housing counseling agencies in the homeowners’ geographic region that provide free services. The list of housing counseling service providers is maintained by the NYS Department of Financial Services (DFS) on its website. Servicers often attach the statewide list of agencies, though they really should just be attaching the list of agencies serving the homeowner’s region to avoid confusion for homeowners.

The second law that is the Consumer Bill of Rights (NY RPAPLL sec. 1303(3-a)) which directed DFS to promulgate a notice setting forth the rights of both parties in a foreclosure proceeding, available on their website. This notice instructs homeowners to seek the assistance of an attorney or housing counseling in the opening paragraph, and directs homeowners to DFS’s website which includes links to the HOPP network of service providers. Again, under the adage that prevention is the best medicine, making sure homeowners know about the HOPP network – whether it be through these notices or investing in a greater public awareness campaign about the HOPP is the best first step to addressing deed theft and homeowner scams.

 

New York State Needs a Strong Basic Consumer Protection Law That Covers All Scams

Our third recommendation to combat deed theft and other homeowner related scams in New York State is to pass the Consumer and Small Business Protection Act (“CSPA”) (A.2495A/S.6414) early in the next legislative session. Every state has a version of what is generically called an “unfair and deceptive acts and practices” or UDAP law. These laws were specifically designed to provide a right of action against bad business practices. New York’s version, however, is really just a “DAP” statute as it only prohibits deceptive acts and practices. The proposed amendment in CSPA would bring New York State in line with the vast majority of other states in the country to add prohibitions against unfair practices, as well as abusive practices.

New York State is certainly a leader in consumer protections in many areas of the law; most notably we arguably have the strongest protections for homeowners facing default and foreclosure in the nation. It is striking, then, that our most basic and overarching consumer protection law, GBL sec. 349, is among the very weakest in the nation. New York was among the first to pass a statute of this kind fifty years ago but has never revisited the statute to update its provisions or penalties. CSPA provides long overdue updates not only adding to the prohibitions “unfair, unlawful, deceptive or abusive” acts and practices by businesses, but it also improves the deceptive prong which has been limited through case law to apply only to conduct that intended to deceive more than one individual (so even if misconduct was deceptive to the individual, the current statute provides no redress for the individual who was harmed if they can’t prove others were as well). The proposed legislation also increases very outdated damage awards from fifty dollars set in 1972 to two thousand dollars per violation, and mandates the award of attorneys’ fees and costs to a prevailing plaintiff. (The legislation also makes technical fixes to the current gender-specific language of the law which refers to the Attorney General as “him.”)

As noted in the first section of this testimony, New York State has a strong anti-deed theft law on the books, HETPA, as well as strong requirements for “Distressed Property Consultants” or foreclosure rescue scams. These laws have deterred much of the activity for which they were written, but they do not deter bad actors from creating work-arounds and coming up with new ways to target and scam homeowners. We support additional legislative proposals put forth by the OAG and our fellow colleagues that would continue to address issues that come up frequently in deed theft scenarios (such as issues with the notary process, criminalizing deed theft, amending HETPA to include transactions involving property tax arrears and addressing bona fide purchaser issues), but even if all these measures can be passed, the law can never keep up with the pace of innovation by bad actors. Just legislating by scam type is truly like the game Whac-A-Mole

Deed theft scams are actually a prime example why New York State needs to finally update our state UDAP statute. GBL sec. 349 is useless and lacks teeth under which to bring a claim when a homeowner is scammed by conduct that doesn’t fit under other laws. For example, one company we’ve been tracking on Long Island sends mail solicitations to homeowners in default offering free legal assistance to help them get out of foreclosure. The offer of free legal assistance is really a bait and switch because by the company’s own admission, few (if any) homeowners are able to save their homes through the legal assistance they provide. When the law firm is unable to assist the homeowner with a resolution, the company purchases a right to purchase the property from the homeowner, and then looks for a buyer for the home. They seem to only target homeowners with significant equity in the home so we believe it is a version of the “we buy houses” scenarios which steal equity from peoples’ homes. From what we can tell so far, their conduct would violate existing statues but we have reason to believe that it is unfair if not abusive.

As noted at the beginning of this testimony, Empire Justice’s lawyers have been working with homeowners in distress for over twenty-five years. Throughout the predatory lending and subprime mortgage lending crises we saw countless scenarios of abuse and unfairness in mortgage lending, and abuses by mortgage brokers and other third parties. The conduct we witnessed usually didn’t rise to the “deceptive” standard set forth in GBL sec. 349, but it was certainly unfair and abusive. CSPA provides clear, common sense definitions for what is considered unfair, unlawful, deceptive and abusive conduct and enhances the ability of organizations to bring claims on behalf of itself or its members. Therefore, it is our recommendation that the best legislative measure to address the myriad of deed theft and related homeownership scams that exist today, and that will come to fruition into the future, is to bring New York State’s UDAP statute into the 21st Century and make it a useful cause of action.

 

Conclusion

Thank you again for the opportunity to provide testimony for this hearing. If you have follow-up questions, please do not hesitate to reach out to Lisa Milas at lmilas@empirejustice.org or Kirsten Keefe at kkeefe@empirejustice.org. We greatly appreciate your ongoing attention and commitment to New York State homeowners and look forward to continuing to work with you as our leaders moving forward.

 

 


TESTIMONY: Public Assistance in New York State

Posted on October 26th, 2022

Assembly Standing Committee on Social Services

Public Assistance in New York State

October 26, 2022

250 Broadway, Assembly Hearing Room 1923, 19th Floor
New York, New York

Prepared by:
Jessica Radbord, Senior Staff Attorney
Empire Justice Center 

 

Read full testimony here: TESTIMONY – Public Assistance in New York State


Client Testimony of Jenna McCormack for the Chief Judge’s 2022 Hearing on Civil Legal Services in New York

Posted on September 21st, 2022

Read this as a PDF HERE.

The Chief Judge’s 2022 Hearing on Civil Legal Services in New York

September 19, 2022

Presented by:

Jenna McCormack, client of Empire Justice Center

 

My name is Jenna McCormack. I am 23 years old, and I will be finishing my degree in Social Work in a few years. I love working with children with disabilities, and I know it will be my purpose in life. I also enjoy reading and spending time with my boyfriend of four years and our pets.

Although my life may seem normal from the outside, I also spend a lot of my time dealing with my disabling chronic illnesses that cause severe pain and other symptoms that are difficult to live with. I have a condition called occipital neuralgia, which means the nerves in the back of my head are inflamed and cause near-constant pain. I couldn’t work or go to school for over two years because I was mostly bedbound.

I went through this two-year period of not being able to do anything because my insurance company denied the procedures my pain management doctor ordered. They said that the treatments I needed were experimental and not medically necessary. I first went through the appeal process on my own, overwhelmed by mountains of paperwork, making stressful calls to the insurance company, and hoping I was doing all the right things. I hoped that telling the truth about my dire situation would be enough to carry me through a Medicaid Fair Hearing.

It was not. I had a telephone hearing due to the pandemic, and it was difficult to know who I was talking to and how they felt about what I was saying. Ultimately, I just had a clerk going over my appeal form and asking me if I wanted to add anything – I was not asked many questions, so it didn’t seem like a real hearing at all. I waited several weeks for the decision, and was heartbroken but not surprised that the system had failed me again. I accepted this as my fate for a while before seeking help with Empire Justice Center.

I felt so much more comfortable and prepared for the second fair hearing. I worked with Alexia Mickles and Fiona Wolfe and they were fantastic about keeping me updated with what would happen next and what they needed from me. I felt such relief knowing that my case was in the hands of people who knew what they were doing. They knew what questions the judge would want answered and worked hard to get evidence that supported our appeal to show that, although the procedure I was seeking isn’t very common, it was necessary to treat my specific medical condition.

This time, I still had a phone hearing, but there was definitely a judge, and Alexia was on the line with me. It went quickly, but we had prepared, and I answered the questions confidently, because I was simply sharing my life story and I felt like I was telling it for the hundredth time. Afterwards, Alexia called me, and we talked about how I felt about the hearing process.

I felt confident, like we had laid out a solid case and I had gotten to say everything I wanted to, and even though my attorneys couldn’t guarantee me great odds at winning my particular case, I felt like we did the best we could on our end and we just had to wait and hope the judge ruled in our favor.

Despite my confidence in our team at the hearing, I tried to prepare myself for disappointment as I had with each previous denial from Medicaid. I couldn’t believe it when I read that the judge had ruled in my favor. I cried. My mom cried. This procedure could mean a world of difference for me.

And it actually has. Nine months ago, I had my radiofrequency ablation performed at my pain management clinic. After a long healing time, I felt my pain reduce drastically. I was able to focus and target my other major health issues, and eventually tackle them well enough to start getting better. I was able to stand and walk with less pain and dizziness, build up muscle in my legs that had atrophied from my time in bed, and take my dog for a walk, which I never thought I’d be strong enough to do. I was even able to start working short part-time hours at a daycare to fulfill my love for children while I wait to finish my degree.

I am beyond thankful for having Empire Justice Center on my side for that hearing, because I know they are the reason we were able to address the insurance company’s points so directly and ultimately win our case. It literally changed my life and I am on a path now to a happy, productive life that I couldn’t have imagined years ago when I was stuck in bed every day.


TESTIMONY: The Chief Judge’s 2022 Hearing on Civil Legal Services in New York

Posted on September 19th, 2022

Read this in a PDF HERE.

 

The Chief Judge’s 2022 Hearing on Civil Legal Services in New York

September 19, 2022

Presented by:

Kristin Brown, President and CEO

 

Prepared by:

Kristin Brown, President and CEO

Alex Dery Snider, Policy and Communications Director

Alexia Mickles, Staff Attorney

Fiona Wolfe, Senior Attorney

 

Good afternoon. My name is Kristin Brown and I am President and CEO of Empire Justice Center. We are a statewide, nonprofit law firm and advocacy organization with six offices across outside of New York City: in Albany, Rochester, Yonkers, Central Islip, and White Plains.

We are an organization that seeks to focus on areas of law where we can have the most impact, with the goal of addressing the root causes of injustice through a blend of direct services, targeted training, and systems change advocacy.

Thank you, Acting Chief Judge Cannataro; Justices Renwick, LaSalle, Garry and Whalen; Chief Administrative Judge Marks, and New York State Bar President Wallach. We are grateful for your ongoing commitment to civil legal services. The Judiciary Civil Legal Services funding is a critical revenue source for Empire Justice Center and our peers. I want to express particular gratitude for the multi-year compounded cost of living adjustment of 12.6% that we received last year; as we all know, the cost of doing business rises every year, and we are grateful for your ongoing recognition of this.

I deeply appreciate Jenna McCormack sharing her story with us today. Ms. McCormack was, in many ways, an ideal candidate for the Fair Hearing process – she was and remains motivated, accomplished, and highly capable. However, as the first decision showed, that was not enough. In order to get the medical care she needed, Ms. McCormack had to meet a burden of proof that she did not know existed. To succeed in this process, one must have an understanding of how to apply evidence to meet a legal standard. Identifying and meeting a legal standard is not a patient’s role, nor a doctor’s responsibility; that is a lawyer’s work.

After her first appeal was unsuccessful, Ms. McCormack was referred to us through the Community Service Society’s Community Health Advocates Program. Our lawyers worked with Ms. McCormack to build a case. Her doctors were, of course, advocating for the treatment plan she was fighting to access, but doctors’ orders were not enough. Ms. McCormack needed a lawyer.

And Ms. McCormack is not alone. According to OTDA, in 2021, 150,000 Fair Hearings were requested [1].  Data about the percentage of appellants who have representation is not published, however, advocates’ analysis consistently reveals that the vast majority are unrepresented at these hearings.

Many state administrative agencies – including the Departments of Health, Labor, and Education – have fair hearing processes similar to OTDA. The Due Process Clause of the Constitution, as well as federal and NYS Law require that a person be afforded an opportunity for a hearing before public benefits can be denied, reduced, or discontinued [2].

These Executive agencies are not part of the judiciary branch, yet their decisions impact hundreds of thousands of New Yorkers’ ability to access justice in the essentials of life, potentially in matters of life and death. Administrative hearings are intended to be navigable by individuals without attorney, but, as Ms. McCormack’s story illustrates, all too often they are not. There is little value to rights if pro se appellants cannot effectively exercise them.  Ultimately too many New Yorkers, like Ms. McCormack, are doomed to fail —  to be failed —  by this process because they don’t have representation.

Additionally, Ms. McCormack participated in the participated in the Fair Hearing process in the early, chaotic days of the pandemic. However, many temporary measures have been in place now for over two years and continue to present challenges. To address this, a coalition of legal services providers submitted a list of recommendations to improve the Fair Hearing process to the Office of Temporary and Disability Assistance (OTDA) and the Department of Health (DOH), including: increased clarity of communications with appellants; transparency in data collection; and improving access for appellants whose primary language is not English [3]. Clearly our legal system is not confined to the Judiciary and must be examined for accessibility and fairness throughout.

It is critical for New York to continue to its progress in closing the justice gap. Every client of a civil legal services provider is one more New Yorker with a fair shot at accessing justice. Increased Judiciary Civil Legal Services funding, including an annual cost of living adjustment to cover the rising cost of doing business, will provide thousands more New Yorkers that fair shot, and allow us to all work together toward a more fair, equitable state for everyone. Thank you.

 


[1] Center for Elder Law & Justice, New York Legal Assistance Group, Neighborhood Legal Services, Legal Aid Society of New York City, Empire Justice Center & Bronx Legal Services, Letter to Commissioner Daniel W. Tietz at 2-4 (June 14, 2022), available online at https://empirejustice.org/resources_post/letter-to-otda-commissioner-re-recommendations-to-improve-fair-hearing-demonstration-project-june-2022/.

[2] An applicant or recipient has the right to challenge certain determinations or actions of a social services agency or such agency’s failure to act with reasonable promptness or within the time periods required by other provisions of this Title, by requesting that the department provide a fair hearing. The right to request a fair hearing cannot be limited or interfered with in any way. 18 NYCRR 358-3.1.

[3] Center for Elder Law & Justice, New York Legal Assistance Group, Neighborhood Legal Services, Legal Aid Society of New York City, Empire Justice Center & Bronx Legal Services, Letter to Commissioner Daniel W. Tietz at 2-4 (June 14, 2022), available online at https://empirejustice.org/resources_post/letter-to-otda-commissioner-re-recommendations-to-improve-fair-hearing-demonstration-project-june-2022/.


TESTIMONY: Commission to Reimagine the Future of New York’s Courts – 2022 Hearings on Pandemic Practices

Posted on June 7th, 2022

Available as PDF here

 

Commission to Reimagine the Future of New York’s Courts

2022 HEARINGS ON PANDEMIC PRACTICES    

                                        

June 7, 2022

 

Presented by: Kristin Brown, President & CEO

 

Prepared by:

Mai Abdullah, Program Support Specialist

Susan Antos, Senior Attorney

Marlene Cortes, Senior Manager

Kirsten Keefe, Senior Attorney

Remla Parthasarathy, Senior Attorney

Jessica Radbord, Senior Attorney

Amy Schwartz-Wallace, Senior Attorney

Fiona Wolfe, Senior Attorney

 

Good morning. Thank you for inviting me to testify at the hearing today. My name is Kristin Brown and I am the President and CEO of Empire Justice Center. I am also a member of the Chief Judge’s Permanent Commission on Access to Justice and a New York Legal Services Coalition Board member. Empire Justice is a legal services organization that addresses a wide range of poverty law issues affecting low-income people across the state of New York. Our advocates provide support and training to legal services and other community-based organizations, represent thousands of New Yorkers annually in individual cases and class actions, undertake policy research and analysis, and engage in legislative and administrative advocacy.

You will hear a great deal during today’s hearings about the impact the pandemic has had on the operation of New York’s courts.   Our focus is as a public interest law firm, where we provide direct representation of individuals within the court system – in diverse practice areas such as foreclosure, landlord-tenant disputes, and civil rights litigation and much more. Like many providers, we shifted the delivery of our legal services during the height of the pandemic in order to meet the needs of our clients by changing the way we connected; creating help lines, using social media, meeting outdoors, and developing resources that were regularly updated with the dizzying changes in process and rules. As the courts began the process of reopening, we adapted to the new normal of online court appearances and the increased use of technology by the judiciary, and supported our clients as they faced this new reality – often through the digital divide.  Throughout all of this, we witnessed firsthand the ways in which the “post-pandemic” court system can play a role in closing the justice gap for people in low-income communities while providing greater access to the courts in some instances, as long as the needs of the diverse array of litigants and their representatives are taken into account.

From my work with the Permanent Commission, it is clear that both court leadership and providers of civil legal services agree that a permanent technology and culture shift has occurred. We are at a unique point in history and it truly is the time to reimagine the future of New York’s Courts. We appreciate this opportunity to provide input toward creating new policies and practices, always with a goal of ensuring that the experience and needs of the individual court user are kept at the forefront.

Today, I want to highlight three key issues/areas for improvement as we see them since courts have reopened:

  1. the need for statewide consistency and development of best practices;
  2. the barriers created by mandating notarization; and
  3. the urgent need for language justice in the courts

 

I. Statewide Consistency Would Better Ensure More Equitable Access to the Courts Across New York

One issue we’ve identified with the move to online court appearances during the pandemic is a lack of uniformity and consistency across jurisdictions, resulting in different treatment and inequitable access to justice. Litigants coming to state court should receive equal or comparable treatment regardless of where they live. Courts had a tall task to figure systems out as they moved along through incredibly difficult circumstances, whether it was a small rural court with a limited technology budget, or an urban court hearing thousands of cases each month. If New York’s state courts move forward to permanently adopt measures employed during the pandemic it is critical that the Office of Court Administration establish a uniform set of standards and best practices for all state courts to follow.

In doing this, a set of standards should be established with the primarily goal of ensuring that all litigants – including people with limited access to technology, people with disabilities, people with limited English proficiency, and so on – are afforded full and fair access to the courts. This means that there is no single solution that will work in all circumstances.  Rather, courts must follow offer a variety of alternatives using a hybrid model, with a focus on affording as much choice to litigants and the representatives as possible.  Courts should address this issue by giving participants meaningful choice, with an option to switch to an in-person proceeding if a participant discovers that remote access to the court is not serving their interests adequately.

Standards should be set regarding the technology to be used and how it is used. The Joint Technology Committee for the Conference of State Court Administrators, the National Association for Court Management, and the National Center for State Courts have developed recommendations for remote hearings.[1] Every technological choice, including the choice not to use technology at all, is likely to influence the way litigants are perceived. Statewide, consistent, evidence-based metrics should be developed to standardize the technology used, including recommendations for camera positioning, muting, control of background noise, volume, and so forth.

To ensure that low-income and pro se litigants have equal access to justice, we must give consideration to who bears the costs of remote access to the courts.  The digital divide is persistent and disparately affects many marginalized communities and rural New Yorkers.  While nonprofit legal service providers like Empire Justice Center are sometimes able to help bridge the digital divide for our clients who are best served by a remote appearance but lack the technology to do so effectively.  However, the cost of closing the digital divide should not be borne by providers whose limited resources must go toward services. The Permanent Commission has developed recommendations for best practices and programs that help to close the divide. Investments in court and community-based kiosks, technology borrowing, and digital navigator programs should be invested in systematically in every part of the state. Until then, consideration must be given to the differing degree of access provided to litigants proceeding remotely who have access to a computer versus a cell phone, two monitors versus one, a safe and quiet space to participate and so forth.  No person’s experience as a witness or litigant should be degraded because they could not afford the equipment necessary to fully participate in proceedings.

Standards for ensuring due process is upheld should be developed. For instance, telephonic or video calls must include a means for the lawyer to have discussions privately with their client during the hearing or meeting.  And where technology fails, or where a litigant is unable to fully participate in a hearing because of technology problems, there must be a standard for adjournments or attempts to immediately resolve the technology problem presented.

New York State has made significant investments in the civil legal services delivery network, and we have made great strides to increase access to counsel for defendants over the years, including representation of tenants facing eviction.  As access expands, standards should be set to ensure defendants are notified and provided access to legal services, when appropriate.  Prior to the pandemic, legal services providers connected to litigants in the courthouse.  Where hearings are remote, those opportunities to offer our services are more limited or nonexistent.  Working with legal service providers, the judiciary should set standards for making sure litigants are aware of free or low-cost legal services available in their communities before they are forced to appear pro se, similar to the process used in foreclosure matters.

In addition to uniform standards, best practices should be identified and set forth and courts statewide should be strongly encouraged to follow. For example, in the context of mandatory settlement conferences in residential foreclosure cases involving home loans, legal services providers have discussed basic best practices for video conferences with homeowner advocates. Best practices would include things like clear identification orally and in writing of all parties involved at the outset, slowing down the pace of the conference and taking pauses, requiring parties to identify themselves each time they talk (this would also be helpful for the court reporter), clearly setting forth the purpose of the hearing or meeting at the beginning and telling the homeowner to have a paper and pencil ready to take notes, and clearly providing a summary at the end and including a two minute pause at the end for questions.

The judiciary need not resolve these problems alone.  We believe that the best way to develop a full set of standards and best practices would be to engage the courts and practitioners across the state, create stakeholder groups, and utilize the expertise available in our law schools and other interested organizations to develop specific best practices to be disseminated across the state.

 

II. Improve Access to Justice by Allowing Affirmations Rather Than Requiring Notarization of Court Documents.

The requirement that legal documents be notarized is a significant and unnecessary barrier to access to the courts and to justice for many low-income people and should be eliminated.  Often it’s the typical access issues – clients do not have transportation or child care to get to a notary and may have to take unpaid time off from work to find one.  In rural communities, notaries are few and far between and because of the nature of smaller communities – everyone knowing everyone – confidentiality is also an issue. Petitioners often need to go to a bank or to the court itself to find a notary. In Black communities, banks, the most reliable place to find a notary, are significantly harder to access.  According to a report published before the pandemic, in majority-white counties, there are an average of 41 financial institution for every 100,000 people compared with 27 in non-white majority neighborhoods[2]. Organizations that serve low-income communities often address this challenge by making sure they have staff who are notaries, placing an additional burden on not-for-profit providers who are often overburdened themselves. Thus, eliminating the requirement will provide administrative relief to legal services providers as well.

Notarized verifications are required in matrimonial proceedings, and a recent case muddies the waters as to whether they are required for family court petitions.  The Third Department recently held that a visitation petition that was not verified could not be dismissed on that basis [Matter of Shawn MM v. Jasmine LL, 180 AD 3d 1186 (Third Dep’t 2020)]. The Court pointed out that the verification requirement was not required by either CPLR 3020 or Article 6 of the Family Court Act. However, the official forms on the New York Uniform Court System (UCS) website contain verification blocks with jurats for a notary’s signature. See: http://ww2.nycourts.gov/forms/familycourt/custodyvisitation.shtml  (last accessed 6/1/22). In light of the Shawn NN decision, the Office of Court Administration should issue guidance as to whether family court petitions must be notarized, and either revise the forms on the UCS website to delete the notarization block, or at the very least indicate that notarization is optional. The UCS website is used by both pro se litigants and their attorneys and making such a change would increase access to justice.

A notarized verification is required to file an Article 78 petition. When the benefits of people who receive public assistance, SNAP, Medicaid or HEAP are discontinued or reduced by their local social services district, this adverse action can be challenged at an administrative fair hearing.  But if the hearing decision is not favorable and the person wants to appeal, typically, an article 78 petition is the only way to appeal an adverse hearing decision. CPLR 7804(d).  There are simply not enough attorneys to provide representation in all such cases, and pro se petitioners face a barrier to accessing a notary within a short four-month statute of limitations.

For the last two years, an Office of Court Administration (OCA) Program bill has been advanced, but not introduced in either the Assembly or the Senate.  This bill would amend CPLR 2106 to allow litigants in civil cases to swear to a statement under penalty of perjury without having to have a document notarized. This would be consistent with 28 USC § 1746, the federal law requiring unsworn declarations under penalty of perjury, rather than sworn notarized statements.  Currently, CPLR 2106 permits only attorneys, physicians, osteopaths, and dentists to file affirmations, and only if they are not a party to an action. We strongly support this OCA Program bill, which would not only increase access to justice, but also, provide clarification that notarization is not required for family court petitions.

We are aware of the recent amendment to § 135-c of the Executive Law, which permits remote notarization, but in our view, this does not solve the access to justice issue.  This law fails to recognize that many low-income families lack the necessary technology, tools and digital skills to make remote notarization effective.

 

III. Language Justice

Language Justice[3] is an evolving framework based on the notion of respecting every individual’s fundamental language right—to be able to communicate, understand, and be understood in the language in which they prefer and feel most articulate and powerful. Rejecting the notion of the supremacy of one language, it recognizes that language can be a tool of oppression, and as well as an important part of exercising autonomy and of advancing racial and social justice.

Access to competent and impartial interpreters is a critical need that is fundamental to the basic tenets of fairness and justice.  Unfortunately, there is a nationwide shortage of certified interpreters, including American Sign Language (ASL) certified interpreters, causing delays in access to the courts or forcing litigants to go without interpretation, even if they do not feel comfortable doing so.  This shortage of interpreters is particularly acute for sign language interpreters for people who do not understand ASL, including Black American Sign Language and Chinese Sign Language. Although some legal services providers, including Empire Justice Center, have bilingual staff, during complex court proceedings, the absence of certified interpreters can cause more harm than good.  Prioritizing the training and hiring of interpreters is of critical importance.  Court certificate exams for non-Spanish interpreters are only offered once a year in NYS, limiting opportunities for potential candidates as the process may take a year or more.   Additionally, certified interpreters are not offered specialized training in how to offer interpretation for remote proceedings and this should be addressed.

In both remote and in-person proceedings, courts review the need for an interpreter in each case.  People with limited English proficiency and users of sign language might not be aware of their rights regarding language access in the courts.  All litigants, including those participating remotely, must be made aware of the availability of interpretation services for proceedings.  Court personnel, including judges, should be offered training to help them ascertain when a litigant or witness may need an interpreter.  This is critical because we find that some of our clients are able to engage in a casual conversation comfortably in English but are not able to understand the complex concepts addressed during court proceedings without an interpreter.  Especially during remote proceedings, were a lack of understanding on the part of a litigant or witness may not be apparent, courts should screen for the need for interpretation services.

Courts should develop consistent procedures and best practices to be applied before proceedings start when an interpreter is being used, including during remote proceedings, so everyone is clear on the process.  For example, many times, court proceedings move faster than an interpreter can competently perform their job. Pauses are needed to provide an opportunity for the interpreter to speak.  In remote proceedings, where gestures cannot be monitored as easily, it is important for the court to manage the need for those pauses.  Further, all persons participating in a proceeding must speak at a reasonable pace when using interpreters to afford the interpreter the opportunity to be as precise as possible.  And in remote proceedings, whether by telephone or video, speakers should be required to identify themselves, so the litigants and court are clear about who is speaking, and confusion and misinterpretation is avoided.

High quality training is essential for the courts and members of the bar to ensure meaningful access for persons using interpreters or when using translated documents, including how to do so in a remote environment.  For instance, all court personnel should be trained on how to effectively work with an interpreter during remote proceedings, including highlighting (if on Zoom) the non-English speaking litigant or witness, not the interpreter, to reduce the difficulty of making credibility determinations.

Appearing remotely in court may save some time (and money), but as described above, special considerations need to be given during remote hearings when one or more persons are using an interpreter. Furthermore, a person using an interpreter is more likely to pay more for their case than a person not using an interpreter due to rescheduling, attorney time, work time off due to the shortage.

Lastly, it is important to note that using an interpreter goes beyond translation.  Effective interpretation must also include cultural competency.

In a legal context, language justice is a commitment to ensuring individuals marginalized based on their national origin, ethnic identification, and language, including sign language, are not denied equal access to services, remedies, and justice overall.  The fundamental rights of tens of millions of individuals who do not use English as their dominant language are at stake and could be lost without such access to justice.

 

Recommendations/conclusion

Our courts have confronted tremendous challenges over the last two years and have demonstrated the ability to be flexible and innovative.  I would like to leave you with our three recommendations for the Commission as you move forward in this important task of ensuring access to justice for all members of our community:

  1. Develop a comprehensive set of standards and best practices to ensure that technology does not become a barrier to equal access and due process in the court system
  2. Reduce the requirements for notarized verifications in court pleadings
  3. Keep language justice at the forefront of the Commission’s ongoing work

[1] JOINT TECH. COMM., MANAGING EVIDENCE FOR VIRTUAL HEARINGS 1 (2020), https://www.ncsc.org/__data/assets/pdf_file/0019/42814/2020-07-27-Managing-Evidence-for-Virtual-Hearings-002.pdf [https://perma.cc/MC69-CSSK].

[2] McKinsey and Company, The Economic Impact of Closing the Racial Wealth Gap, https://www.mckinsey.com/industries/public-and-social-sector/our-insights/the-economic-impact-of-closing-the-racial-wealth-gap, August, 2019

[3] American Bar Association on Language Justice


TESTIMONY – Human Services Budget Hearing 2022

Posted on February 2nd, 2022

Read the full testimony here: TESTIMONY – Human Services Budget Hearing – Empire Justice Center 2022

 


TESTIMONY – Housing Budget Hearing 2022

Posted on January 31st, 2022

Read the full testimony here: TESTIMONY – Housing Budget Hearing – Empire Justice Center 2022.


TESTIMONY – Public Protection Joint Budget Hearing – 2022

Posted on January 25th, 2022

This testimony includes requests to:

Read the full testimony here: TESTIMONY: Public Protection Joint Budget Hearing 2022


TESTIMONY: 2021 Joint Housing Budget Hearing

Posted on February 2nd, 2021

Empire Justice Center testimony to the NYS 2021 Joint Housing Budget Hearing: here.


TESTIMONY: Hearing on the Budget and Staffing Reductions in the Judiciary Branch

Posted on November 12th, 2020

Read the full testimony here.