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Lassiter Notwithstanding

The Right to Counsel in Foreclosure Actions

By John Pollock

Representation by counsel is especially important in foreclosure actions due to their complexity. Despite the presumption against a right to counsel where liberty is not at stake, as articulated by the U.S. Supreme Court in Lassiter v. Department of Social Services, advocates can make a strong argument that the national epidemic of foreclosure actions passes the Lassiter test. The factors that the U.S. Supreme Court set forth in Matthews v. Eldridge—the private interest at stake, the state’s interest, and the risk of erroneous deprivation of rights—should require assignment of counsel in many foreclosure cases.

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