The notice to hundreds of homeowners in cases dating back to 2008 references in-person hearings and status conferences beginning Monday before Kings County Civil Administrative Judge Lawrence Knipel, who is also a justice in the county's Supreme Court. It states that "failure to attend could result in the loss of your case."
To the chagrin of advocates, the notice does not mention a New York state law amended and extended last month that allows homeowners to submit a simple form attesting to hardship during the coronavirus pandemic and pause their foreclosure cases until Jan. 15, absent a motion to challenge from the bank holding the mortgage.
A redacted copy of the "hardship hearing" notice obtained by legal service providers.
In instances where a hardship form has already been submitted, advocates argued, Justice Knipel's hearings violate the law. And where no declaration currently exists, the notices leave homeowners in the dark about their rights.
Online court calendars show 481 appearances scheduled before Justice Knipel between Oct. 25 and Nov. 15, including 40 for Monday, in foreclosure cases that commenced between 2008 and 2014.
Reached for comment on Friday, Office of Court Administration spokesperson Lucian Chalfen said that Justice Knipel's hearings are still on "as of now," and "only 10%" of foreclosure cases in Kings County have a submitted hardship form.
Failure to attend one of Justice Knipel's hearings would "not result in loss of the case, only in the court deciding the hardship issue," Chalfen claimed, calling the request for financial documents a "belt and suspenders" approach for extra insurance.
But the hearing notice is "threatening," according to Christopher Fasano, a senior staff attorney at Mobilization for Justice.
"What the court should be doing here is telling people: 'If you have a hardship, here's a declaration. Fill it out,'" Fasano told Law360. "And for anyone who did fill out a declaration, just follow the law and stay the case until Jan. 15. And they're really doing the opposite."
Jacob Inwald, director of foreclosure prevention at Legal Services NYC, said he was aware of homeowners who submitted hardship forms and are still being called in for a hearing.
"The point is, the judge shouldn't be violating the law in even one case," Inwald said.
In their own letter Friday, members of New York's state Legislature, including the chairs of the Senate and Assembly housing and judiciary committees, urged Judge Marks to "take all steps necessary to call off this process."
Citing the ongoing pandemic, the lawmakers also questioned "the court's ability to adapt to a large in-person caseload so rapidly with the proper safety precautions."
Advocates are planning to set up an information table for homeowners at the Kings County Supreme Court building at 360 Adams St. Monday morning, the first day of in-person hearings on Justice Knipel's calendar.
"If we see homeowners there who are unaware of the hardship declaration, we will give them legal information," Fasano said. "If the court's not going to do it, then legal service providers should step in."
--Editing by Robert Rudinger.
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