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The State-Action Requirement of Due Process in Foreclosure Litigation

By John Pollock

Demonstrating “state action” is a threshold requirement in arguing for the appointment of counsel in foreclosure-related judicial proceedings under the Fourteenth Amendment’s due process clause. In states where lenders must file an action to foreclose, the state judicial process arguably constitutes state action. In nonjudicial-foreclosure states, the argument for state action is less clear. State constitutions may have less stringent state-action requirements than the federal constitution or none at all. The elements needed to show state action, which can be argued under federal or state law, continue to evolve.

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