Friday, January 23, 2015

"NEW" NEW YORK LAWS FOR 2015

Courtesy of New York State Senator O'Mara, there are  a number of new laws that took effect in New York State on January 1st.

For a list of some of the new laws see:

http://www.nysenate.gov/news/new-laws-take-effect-2015

Thursday, January 22, 2015

TIME BARRED DEBT COLLECTION

From a press release from New York State Attorney General:

"A.G. Schneiderman Obtains Settlement From Major Debt Buyer Who Filed Thousands Of Time-Barred Debt Collection Actions

Encore Capital Group Inc. Will Vacate More Than 4,500 Improperly Obtained Judgments Totaling Nearly $18 Million; Reform Practices; And Pay $675,000 In Penalties And Costs

Schneiderman: We Will Continue To Pursue Debt Collectors And Lenders Who Improperly Take Advantage Of Courts And Hardworking New Yorkers"

See http://ag.ny.gov/press-release/ag-schneiderman-obtains-settlement-major-debt-buyer-who-filed-thousands-time-barred

Wednesday, January 21, 2015

JANUARY - DIVORCE MONTH?

For what its worth, some studies say divorce filings, etc. begin to peak in January through March. For more on this, see:

http://www.cnn.com/2014/01/17/living/january-divorce-month-matrimony/

Tuesday, January 20, 2015

CONSUMER LAW - RECISSION

Jesinoski v. Countrywide Home Loans, Inc., No. 13-684 (January 13, 2015) is the SCOTUS case resolving a split among the federal courts of appeals in favor of consumers. The Supreme Court held in Jesinoski v. Countrywide Home Loans, Inc. that a consumer may exercise the right to rescind a loan under the federal Truth in Lending Act simply by notifying the creditor rather than (as the creditor contended and as several federal courts had held) by filing a lawsuit.

The facts of the case are, according to Oyez.org:

"On February 23, 2007, Larry and Cheryle Jesinoski refinanced their Eagan, Minnesota, home by borrowing $611,000 from Countrywide Home Loans, Inc. The Jesinoskis received a Truth in Lending Act (TILA) disclosure and a Notice of the Right to Cancel, which gave them until midnight on February 27, 2007, to rescind the loan. The Jesinoskis did not exercise their right to cancel the loan, and they used the money to pay off several consumer debts. On February 23, 2010, the Jesinoskis attempted to rescind the loan and argued that they did not receive sufficient copies of the TILA disclosure and the Notice of the Right to Cancel. After the request to rescind the loan was denied, the Jesinoskis sued Countrywide Home Loans for failure to rescind their loan on February 24, 2011.

Countrywide Home Loans sought a judgment on the pleadings and argued that the Jesinoskis did not file their suit within the three-year time period allowed by TILA. The Jesinoskis argued that, because they attempted to rescind the loan within the three-year time period, their suit fulfills that requirement and should be allowed to proceed. The district court found in favor of Countrywide Home Loans; the U.S. Court of Appeals for the Eighth Circuit affirmed."

Of course, Thte ruling doesn’t necessarily mean homeowners will be able to escape paying their mortgages. The Jesinoski case now returns to a lower court, where the bank will have a chance to argue that the couple received the required forms.  And then assuming the Jesinoskis can rescind, how is the bank repaid and how much?

Friday, January 16, 2015

ON "SELF HELP" ATTEMPT TO TERMINATE CHILD SUPPORT

Hastie v. Tokle, 122 A.D.3d 1129, --- N.Y.S.2d --- (Third Dept. 2014)(2014 WL 6475115)(Nov. 20, 2014):

......

" Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 1989 and 1990). Pursuant to a 2007 order, the father was directed to pay a single weekly amount for the support of both children. In January 2012, the mother filed a petition alleging that the father had willfully violated the 2007 order by failing to pay child support for a five-month period in 2011. As a defense to the violation petition, the father claimed that the mother had waived her right to child support after the older child had reached the age of 21 and the younger child allegedly had become emancipated. After a hearing, a Support Magistrate (Linen, S.M.) found the father to be in willful violation of the support order and directed judgment against him for arrears. Family Court thereafter confirmed the finding of a willful violation and also directed the father to, among other things, pay the mother's counsel fees. The father now appeals, and we affirm.

We reject the father's contention that the mother waived her right to receive child support. While a parent can expressly waive child support, such waiver must represent a "voluntary and intentional abandonment of a known right" (Matter of Williams v. Chapman, 22 AD3d 1015, 1017 [2005] [internal quotation marks and citations omitted]; see Matter of Dox v. Tynon, 90 N.Y.2d 166, 168 [1997]). Here, the mother sent the father a note in January 2011 indicating that the younger child had graduated from school and had become employed. The following month, the mother sent a second note indicating that both children would be "claiming themselves for the 2010 tax season." The father's attorney advised him that he could stop paying child support because these letters represented an admission by the mother that the children were both emancipated. His attorney then sent a letter to the mother advising her that the father's child support payments would be terminated as of March 2011.

Contrary to the father's arguments, we do not view the mother's notes as reflecting a voluntary and intentional abandonment of her right to receive continued child support, as there is nothing in the notes indicating that the mother agreed that the father was no longer required to pay such support. In addition, the record reflects that, when she received the letter from the father's attorney, the mother was not aware that she had any recourse. Nor did the mother's failure to immediately challenge the letter from the father's attorney by commencing an enforcement proceeding constitute a waiver of child support, as a "recipient may not impliedly ‘waive the right to unpaid child support simply by failing to demand payment or seek enforcement of support obligations' " (Matter of Williams v. Chapman, 22 AD3d at 1016, quoting Matter of Dox v. Tynon, 90 N.Y.2d at 168; accord Matter of Duffy v. Duffy, 30 AD3d 735, 736 [2006]).

In the absence of an express waiver, the father was required to apply to Family Court for a modification of his support obligation (see Matter of Wendel v. Nelson, 116 AD3d 1057, 1058 [2014]; Matter of Williams v. Chapman, 22 AD3d at 1017). Having failed to do so, the father was not entitled to resort to self-help and terminate his support payments based upon his own assessment of his continued legal obligation in view of the children's circumstances. Inasmuch as the father did not commence a modification proceeding, Family Court was precluded from reducing or annulling the arrears that accrued (see Family Ct Act § 451; Matter of Dox v. Tynon, 90 N.Y.2d at 168–169; compare Matter of Russo v. Irwin, 49 AD3d 1039, 1042 [2008]). Therefore, the proof that the father failed to make 26 weekly child support payments constituted prima facie evidence of a willful violation (see Family Ct Act § 454[3][a]; Matter of Richards–Szabo v. Szabo, 99 AD3d 1069, 1070 [2012]), in response to which the father failed to present competent evidence of his inability to pay. As a result, we discern no basis to disturb the finding that the father willfully violated the child support order or the consequent award of counsel fees (see Family Ct Act §§ 438[b]; 454[3]; Matter of Duffy v. Duffy, 30 AD3d at 737).
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Thursday, January 15, 2015

FREE SENIOR CLINIC TODAY AT NASSAU COUNTY BAR ASSOCIARION

The next senior clinic is scheduled to take place on Thursday, January 15th 2015 at 9:30 am-11am.

I will be a volunteer.

For further information, contact Demi Tsiopelas , Lawyer Services Coordinator, Nassau Bar Association 15th & West Streets Mineola, NY 11501 t. 516.747-4070 ext. 210, f. 516.747-4147

Wednesday, January 14, 2015

FREE ONLINE RESEARCH TOOL

I am referring to Casetext at https://casetext.com/

From their email:

"Welcome to Casetext! Casetext aims to leverage contributions from an active community of attorneys and law professors to provide the public with free access to legal research. On the website you can follow community pages organized by topic, and post to an interactive platform that lets you contribute analysis, meet colleagues, ask questions, and engage in discussion, linking directly to primary legal documents where relevant. Or use the research tool to search our growing database of cases and statutes, annotated by the community."