A Bittersweet End, A Solid Model for the FutureJanuary 25, 2018
By Bob Glaves | CBF Executive Director
In the ongoing budget saga for the Cook County government, one of the unfortunate casualties has been the Circuit Court Mortgage Foreclosure Mediation Program, which officially ended in December when its funding was not renewed.
While there is no doubt the current budget challenges facing the County in the aftermath of its recent soda tax debacle are real, eliminating this successful program is a shortsighted move that will end up costing the County much more than it would to fund the program at its prior 2017 level. As we continue to evaluate whether there are other potential County funding options to restart the program, looking back on what made the program most effective over the past 7+ years offers a good model for developing effective court-based programs going forward.
Background on the Mortgage Foreclosure Mediation Program and Its Impact
The CBF and other partner organizations worked with the Circuit Court to develop and launch this innovative program in the Spring of 2010 (when the foreclosure crisis was nearing its peak) to help homeowners resolve their foreclosure cases in the most fair and effective manner possible. The program was a great example of a public/private partnership and played a critical role in stabilizing communities throughout Cook County.
Funding for the Circuit Court of Cook County is one of the County’s core responsibilities, and the County’s support for this program made it possible for homeowners facing foreclosure to receive free housing counseling, brief legal advice and assistance, and community education. One of several improvements to the program based on the practical experience and learning of the program’s early years was the addition of case managers working for the Court. These court neutrals both helped to ensure homeowners and lenders understood their responsibilities, and helped bring the parties together and ensure they were working in good faith to find potential alternatives short of foreclosure. Many more homeowners were able to reach negotiated solutions with their lenders with the help of the case managers and housing counseling services.
For the smaller number of cases where homeowners had a potential legal defense or a more complex issue that needed to be resolved to reach agreement with the lender on an alternative to foreclosure, homeowners also had access to pro bono legal representation and free mediation.
The program also included another component that played an integral role. Community-based organizations working in harder hit parts of the County were key partners in the program and received funding to do outreach to homeowners who had received foreclosure papers.
The Mortgage Foreclosure Mediation Program was born out of the housing crisis that came in the aftermath of the great recession. While the program gradually contracted to about half its peak size as foreclosure volumes returned to pre-crisis levels, it continued to help thousands of homeowners facing foreclosure each year and played a crucial role in keeping our communities safe and stable. Last year alone, the program saved 740 homes (and more than 7,200 since the program’s inception), and even more people were able to negotiate alternatives to foreclosure that resulted in stable transitions for both the homeowners and their neighborhoods.
The experience with this program leaves us with a number of lessons that should serve as models for other court-based programs in the future.
The Importance of Community Partnerships and Outreach
Before the program started, awareness and trust in the community in the foreclosure process and the court was quite low. That was reflected in the fact that 90% of homeowners served with foreclosure papers simply defaulted without ever appearing in court.
Thanks primarily to the community-based organization partners, who helped to connect homeowners with the array of free resources available and to build trust that the Court was committed to ensuring fair outcomes, those numbers were turned completely on their head. Not long after the program was up and running, 90% of homeowners in foreclosure were appearing in court and participating in the process.
Having partners who personally visited people’s homes to encourage them to enter the program and who already had established trust in their communities was crucial to that amazing turnaround. And these community organizations were essential partners in the design and execution of the program overall, giving practical feedback based on their experience and community perspective about how to make the program most accessible and helpful to homeowners.
Building community trust in the court process is an important goal for all of us connected to the justice system and one of the specific goals in the Illinois Supreme Court Commission on Access to Justice’s recently adopted strategic plan. Bringing community-based organizations into the process as full partners not only helps to build that trust, but it also provides great feedback and guidance for how we can make the system more fair and accessible for people who come into the courts without lawyers.
A Continuum of Services Helps Ensure People Get the Legal Help They Need
With more than 50,000 annual foreclosure cases being filed at the peak of the housing crisis, one of the key challenges was to triage homeowners at an early stage to help determine what services would be most helpful to them.
By setting up a hotline and associated web-based tools to connect homeowners to legal and financial screenings, homeowners could determine early in the court process whether they had a legal defense or a reasonable prospect of working out an alternative resolution to their cases. In the majority of cases, those options were not realistically available to them, but in those instances the homeowners had the assistance necessary to participate in the court process and an understanding of what their rights were so they could make the best decisions going forward.
For the smaller numbers who had a legal defense or a realistic prospect of working out an alternative resolution, through the program they could get pro bono representation (most often limited scope representation for the mediation sessions), further assistance from a housing counselor, and/or access to free mediation.
This was a very cost-effective way to provide homeowners with the help they needed to reach the best resolution for their cases, and it clearly made a big difference in their perception of the fairness of the process as well. Program surveys showed 95% of the parties who participated in mediation sessions reported being satisfied or highly satisfied with the process, even though only half reached agreements and most were not able to retain their homes at the end of the process.
While the nature of the continuum of services will vary depending on the type of issues involved, this is a good model for any branch of the court where there are high volumes of unrepresented litigants.
Not Just Legal Services on the Continuum
Along with the range of legal services available in the program brief advice and assistance for the majority, limited scope representation and mediation for most others, and full representation when there were contested issues the availability of housing counseling was absolutely crucial.
Only a fraction of homeowners had legal defenses that could defeat the foreclosure; for most, they simply were in over their heads and could not pay their mortgage under its original terms due to changes in circumstances that usually were related to the economic crisis. Many, however, had options to refinance or take advantage of government programs that could avoid the foreclosure. Housing counselors helped them evaluate their circumstances and, where they were eligible for one of these options, assisted them in applying for relief. Many thousands were able to save their homes as a result of these types of agreements, and counseling agencies played an integral role in efficiently and effectively resolving these cases.
In other areas of law, it will be a different type of service that should be added to the continuum, such as financial counseling in consumer cases or social services for evictions. Providing these services as a supplement to the legal services on the continuum helps the parties and the court to reach the most efficient and effective resolution for the cases.
Court Case Managers a Key Addition
The addition of the case managers in the program was a transformative step, helping both to ensure unrepresented homeowners understood their responsibilities under the court’s orders and to hold both sides accountable to deadlines established by the courts to attempt to work out a resolution.
For any area of the courts with a high volume of unrepresented litigants, this is an important function for both court efficiency and the public’s perception of fairness in the process. While judges certainly play some of this role, for high volume courtrooms like those in foreclosure, that is not always realistic. And for follow-up after court rulings to make sure unrepresented parties understand their responsibilities under court orders and what they need to do next, case managers or similar neutrals working for the court can vastly improve the process.
While we hope the mortgage foreclosure mediation program will live to help another day, the lessons from the program leave a great legacy that go beyond the direct impact the program had for tens of thousands of people and their communities. Investing in a comprehensive set of services makes the legal assistance provided more efficient and cost-effective, significantly improves outcomes for the participants, and improves overall community trust in the court system. We should do a lot more of this in the courts going forward.