SONYMA

From the SONYMA website (link above on title):"The State of New York Mortgage Agency, or SONYMA, provides affordable homeownership opportunities to low- and moderate-income first-time homebuyers in New York State. SONYMA's primary homeownership program is the Low Interest Rate Program. It features below-market,fixed interest rates for first-time homebuyers. Up to 97% financing is available. To be eligible, a prospective homebuyer's income must be within the program's household income limits and the sales price of the property
cannot exceed the program's purchase price limits. SONYMA also offers several specialized homeownership programs:
1. The Achieving the Dream Program offers a very low interest rate mortgage to
low-income first-time homebuyers.
2. The Construction Incentive Program provides up to 100% financing to
qualified first-time homebuyers who purchase newly constructed or rehabilitated homes.
3. The Remodel New York Program allows borrowers to finance the cost of
acquisition and renovation in one low-rate loan.
4. The Keep the Dream Program helps owners with adjustable, interest-only or
other unconventional mortgages avoid foreclosure by refinancing with a fix-rate
mortgage.
5. The Homes for Veterans Program allows military veterans to obtain any SONYMA
mortgage on more favorable terms.
Closing Cost Assistance Loans are available along with every SONYMA loan. Qualified borrowers may receive closing cost assistance of $5,000 or 5% of the mortgage loan amount-whichever is greater. The interest rate for applicants taking advantage of our CCAL program is 0.50% higher than the standard SONYMA rate offered for each program. SONYMA also offers special incentives to prospective homebuyers interested in purchasing a newly constructed,energy efficient home under the ENERGY STAR® Labeled Homes Program or a home in a Federally designated Target Area, which are areas considered economically distressed.For more information please visit our website at www.nyhomes.org or call us at (800) 382-HOME (4663)"

CASH FOR CLUNKER EQUALS LEMON?

With the "Cash For Clunkers" program being such a success, some people may have wound up trading their clunker for a "lemon". The New Car and Used Car Lemon Laws provide a legal remedy for buyers or lessees of new and used cars that turn out to be lemons. If your car does not conform to the terms of the written warranty and the manufacturer or its authorized dealer is unable to repair the car after a reasonable number of attempts, you may be entitled to a full refund. The Office of The Attorney General has a Consumer Frauds Bureau that handles claims and can be found by clicking on the title above. Of course, you may want to consult with an attorney to discuss your rights and limitations under the Lemon Laws.

UNEMPLOYMENT INSURANCE BENEFITS LOST DUE TO SCHOOL

We read, and are told, many times that in this economy, go back to school and learn a new trade. But if you are seeking unemployment benefits in New York, that can present a problem. Recently presented with this issue, I discovered cases that held that "Leaving employment to enter college or school or to otherwise improve one's education is without good cause within the meaning of the Unemployment Insurance Law" and that "Refusal of employment with customary hours in the industry because the hours interfere with attendance at night college classes is without good cause regardless of work opportunities at other hours at which claimant previously worked" However, you are eligible for unemployment benefits while you are participating in an “approved” school or job training program under a NYS Department of Labor program called Section 599. If your school or job training program is approved, you do not have to look for work during the time you are enrolled in training and can refuse job offers.

SEX OFFENDER NOTIFICATION

From Newsday, August 27, 2009 - on a personal note, as father of twin 8 year olds, I am signed up for notifications from parentsformeganslaw.org: "Three state senators called on Gov. David A. Paterson to sign into law a bill that would create a statewide e-mail alert program notifying people when a convicted sex offender moves into a neighborhood. But the executive director of Parents for Megan's Law - a Stony Brook-based nonprofit group that provides the same service and allows visitors to its Web site to map where offenders are located with thumbnail sketches complete with pictures - said such a program may be redundant. Sens. Brian Foley (D-Islip), Craig Johnson (D-Port Washington) and Jeffrey Klein, a Democrat who represents parts of the Bronx and Westchester County, joined area school leaders and community advocates Thursday to push for the measure. It now sits on Paterson's desk, the product of a unanimous passage in the Senate and near-unanimous vote in the Assembly. Legislative sources say he is likely to sign it. "This is a bill where we've found common ground," said Foley, standing in front of the William Floyd Elementary School in Shirley. If Paterson does sign it, the new law would allow residents who sign up to receive instant e-mail alerts when an offender moves into any of three ZIP codes they chose. The notifications would be for Level 3 offenders, who are deemed most likely to commit sexual crimes again, and Level 2 offenders, who state evaluators deem to have a moderate likelihood of doing so. Klein said the law would bring Megan's Law, the federal measure that requires sex offenders to register their whereabouts with local law enforcement authorities, into the digital age. Johnson said while the service, to be administered by the state's Department of Criminal Justice Services, may already be provided by other groups such as Parents for Megan's Law, more is better. "We're all working to protect children," he said.Megan's Law allows law enforcement authorities to release information about offenders based on their likelihood to re-offend. The higher an offender's level, the more information authorities are allowed to release. Some entities, such as school districts, assist law enforcement authorities and alert people in their communities. The William Floyd school district, said Superintendent Paul Casciano, spends up to $25,000 a year notifying area residents by mail of sex offenders who move in. It also uses the Parents for Megan's Law's e-mail alert system designed for school districts. Last year, Parents for Megan's Law used a $593,000 grant to build its system, which sends users alerts when a sex offender moves into a specific ZIP code anywhere on Long Island. That is an expansion on school districts' alerts by e-mails and letters. The group has since received state funding and further expanded the program to operate statewide.People can log on to the Web site, parentsformeganslaw.org, to monitor the 29,000 sex offenders statewide and the 1,400 or so in Nassau and Suffolk counties. Laura Ahearn, the organization's executive director, said her service also provides information on Level 1 offenders, which the state's registry does not, as state law limits that information. "Proposed legislation, although well intentioned, is clearly duplicative of a service already being provided by our organization," Ahearn said. "Establishment of this duplicate program would cost taxpayers more money to start up . . . staff and maintain, and, taxpayers would be getting less support than is already being provided."

LAWYER ADVERTISING

Recently, I was asked "what kind of a lawyer would list his services on craigslist?" Well, I am one of those lawyers and, as you can see from this blog, there are many tools on the internet that I and other lawyers use for advertising. The controversy used to be ads, radio spots, and television: at one point, it was frowned upon by laymen and attorneys alike. Some internet advertising is also controversial: recently a lawyer's ad for traffic court representation was displayed on the website for the court clerk in Chicago's Cook County and it has generated much controversy as well as litigation regarding it's propriety. Times change and so do the rules regarding lawyers advertising. Here are the current New York rules regarding lawyer advertising from WestLaw:

"22 NYCRR 1200.50

22 N.Y. Comp. Codes R. & Regs. 1200.50


OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK
TITLE 22. JUDICIARY
SUBTITLE B. COURTS
CHAPTER IV. SUPREME COURT
SUBCHAPTER E. ALL DEPARTMENTS
PART 1200. RULES OF PROFESSIONAL CONDUCT
Current through July 15, 2009.


* Section 1200.50.* Rule 7.1: Advertising.


(a) A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that:

(1) contains statements or claims that are false, deceptive or misleading; or

(2) violates a Rule.

(b) Subject to the provisions of paragraph (a), an advertisement may include information as to:

(1) legal and nonlegal education, degrees and other scholastic distinctions, dates of admission to any bar; areas of the law in which the lawyer or law firm practices, as authorized by these Rules; public offices and teaching positions held; publications of law related matters authored by the lawyer; memberships in bar associations or other professional societies or organizations, including offices and committee assignments therein; foreign language fluency; and bona fide professional ratings;

(2) names of clients regularly represented, provided that the client has given prior written consent;

(3) bank references; credit arrangements accepted; prepaid or group legal services programs in which the lawyer or law firm participates; nonlegal services provided by the lawyer or law firm or by an entity owned and controlled by the lawyer or law firm; the existence of contractual relationships between the lawyer or law firm and a nonlegal professional or nonlegal professional service firm, to the extent permitted by Rule 5.8, and the nature and extent of services available through those contractual relationships; and

(4) legal fees for initial consultation; contingent fee rates in civil matters when accompanied by a statement disclosing the information required by paragraph (p); range of fees for legal and nonlegal services, provided that there be available to the public free of charge a written statement clearly describing the scope of each advertised service; hourly rates; and fixed fees for specified legal and nonlegal services.

(c) An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending;

(2) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor;

(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case;

(4) use actors to portray the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same;

(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence;

(6) be made to resemble legal documents; or

(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

(d) An advertisement that complies with paragraph (e) may contain the following:

(1) statements that are reasonably likely to create an expectation about results the lawyer can achieve;

(2) statements that compare the lawyer's services with the services of other lawyers;

(3) testimonials or endorsements of clients, where not prohibited by paragraph (c)(1), and of former clients; or

(4) statements describing or characterizing the quality of the lawyer's or law firm's services.

(e) It is permissible to provide the information set forth in paragraph (d) provided:

(1) its dissemination does not violate paragraph (a);

(2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and

(3) it is accompanied by the following disclaimer: "Prior results do not guarantee a similar outcome."

(f) Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled "Attorney Advertising" on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words "Attorney Advertising" shall appear therein. In the case of electronic mail, the subject line shall contain the notation "ATTORNEY ADVERTISING."

(g) A lawyer or law firm shall not utilize:

(1) a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firm's own web site or other internet presence; or

(2) meta tags or other hidden computer codes that, if displayed, would violate these Rules.

(h) All advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered.

(i) Any words or statements required by this Rule to appear in an advertisement must be clearly legible and capable of being read by the average person, if written, and intelligible if spoken aloud. In the case of a web site, the required words or statements shall appear on the home page.

(j) A lawyer or law firm advertising any fixed fee for specified legal services shall, at the time of fee publication, have available to the public a written statement clearly describing the scope of each advertised service, which statement shall be available to the client at the time of retainer for any such service. Such legal services shall include all those services that are recognized as reasonable and necessary under local custom in the area of practice in the community where the services are performed.

(k) All advertisements shall be pre-approved by the lawyer or law firm, and a copy shall be retained for a period of not less than three years following its initial dissemination. Any advertisement contained in a computer-accessed communication shall be retained for a period of not less than one year. A copy of the contents of any web site covered by this Rule shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days.

(l) If a lawyer or law firm advertises a range of fees or an hourly rate for services, the lawyer or law firm shall not charge more than the fee advertised for such services. If a lawyer or law firm advertises a fixed fee for specified legal services, or performs services described in a fee schedule, the lawyer or law firm shall not charge more than the fixed fee for such stated legal service as set forth in the advertisement or fee schedule, unless the client agrees in writing that the services performed or to be performed were not legal services referred to or implied in the advertisement or in the fee schedule and, further, that a different fee arrangement shall apply to the transaction.

(m) Unless otherwise specified in the advertisement, if a lawyer publishes any fee information authorized under this Rule in a publication that is published more frequently than once per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication. If a lawyer publishes any fee information authorized under this Rule in a publication that is published once per month or less frequently, the lawyer shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information authorized under this Rule in a publication that has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication, but in no event less than 90 days.

(n) Unless otherwise specified, if a lawyer broadcasts any fee information authorized under this Rule, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such broadcast.

(o) A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television or other communication medium in anticipation of or in return for professional publicity in a news item.

(p) All advertisements that contain information about the fees charged by the lawyer or law firm, including those indicating that in the absence of a recovery no fee will be charged, shall comply with the provisions of Judiciary Law § 488(3).

(q) A lawyer may accept employment that results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services.

(r) Without affecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice.

22 NY ADC 1200.50
22 NY ADC 1200.50
2009 WL 6782902
22 NY ADC 1200.50

© 2009 Thomson Reuters/West. No Claim to Orig. U.S. Govt. Works."

VETERANS ADVOCACY PROJECT

Again, from the website of the Nassau County Bar Association: "In 2007, the Nassau County Bar Association, working closely with the Nassau County Veterans Service Agency, launched the Veterans Advocacy Legal Project, a program to provide free legal assistance for returning veterans who face legal challenges resulting from their current military service. NCBA attorneys have volunteered to provide free (also known as pro bono) legal assistance to any returning veteran who may be facing such legal issues as discrimination in the workforce, credit penalties incurred during military service, or even eviction or foreclosure issues that may be a result of their military service. Returning veterans wishing legal assistance may contact the Nassau County Bar Association’s Lawyer Referral Office at 516-747-4832 or email LawyerReferral@nassaubar.org."

NASSAU COUNTY BAR ASSOCIATION BANKRUPTCY CLINIC

Again, from the website of the Nassau County Bar Association: "NCBA members provide pro bono legal assistance to indigent individuals who cannot afford attorneys and who meet income guidelines. The clinics are held bi-monthly at the NCBA headquarters, where attorneys review the individual’s financial situation to determine if bankruptcy is the best course of action. For more information, contact
Nassau/Suffolk Law Services Committee, One Helen Keller Way, Hempstead, NY 11550-3903
(516) 292-8100"

NASSAU COUNTY BAR ASSOCIATION SENIOR CITIZEN CONSULTATION CLINIC

Again, from the website of the Nassau County Bar Association: "Each month, attorneys provide free 30-minute private consultations to Nassau County residents 65 years of age and over. The consultation does not provide free legal service. The Clinics are held from 9:30 a.m. to 10:30 a.m. at the Nassau County Bar Association, 15th and West Streets, Mineola, NY. Advance telephone registration is required. Please call NCBA: (516) 747-4070. The next clinic will be held in September 2009."

NASSAU COUNTY BAR ASSOCIATION LAWYER REFERRAL INFORMATION SERVICE

From the website of the Nassau County Bar Association: "If you think you need a lawyer, chances are you do. People often postpone getting legal help because they do not know a lawyer or are unsure of how to choose one. The Nassau County Bar Association established the Lawyer Referral Information Service (LRIS) to provide trained personalized assistance to help you find the right lawyer for your legal issue. There are more than 500 participating private practice attorneys on the panel who have experience in all areas of the law. All are in good standing with the New York State Office of Court Administration. It is important that you seek competent legal assistance before your situation becomes a serious problem. DON’T DELAY!

How Does It Work?

1. Simply call the Lawyer Referral Service at 516-747-4832 or email lawyerreferral@nassaubar.org for assistance.

2. The nature of your situation is quickly evaluated by trained personnel and you are given the phone number of a lawyer. In some cases you may be referred to an agency or other organization that may be able to help you. All information remains completely confidential.

3. You contact the attorney to set up an appointment.

4. You meet with the attorney where you are given an initial half hour consultation for a nominal fee. Be sure to bring all documents and information relating to your legal case to this meeting.

5. If your issue cannot be resolved at this meeting, or additional legal work is called for, you may make arrangements with the lawyer for additional services and fees.

If you have a problem but aren't sure where to turn, don't hesitate to call Nassau County Bar Association Lawyer Referral! 516-747-4832"

IMMIGRATION MATTERS SHOULD BE HANDLED BY ATTORNEYS

This is appeared in Newsday August 21, 2009:

"Cuomo shuts immigration aid firms he accuses of fraud - August 20, 2009 by ROBERT E. KESSLER AND BY SUMATHI REDDY New York State Attorney General Andrew Cuomo announced yesterday he halted the operation of three firms - two on Long Island and one in New York City - that he said defrauded clients who were seeking help with their immigration status. Cuomo also announced civil suits against three other firms in the city that are also involved in what he said were similar scams. Cuomo said the businesses cheated thousands of people by falsely claiming they were qualified to provide legal assistance and filing worthless paperwork with the U.S. Citizenship and Immigration Service. The actions against the six firms were part of the attorney general's ongoing investigation into immigration assistance firms that he said have defrauded people by falsely representing that they can provide help with immigration problems. "The consequences of bad legal advice can be absolutely devastating," thwarting people's attempts to change residency status and costing people money who can ill-afford it, Cuomo said in a telephone news conference. Cuomo said the two Long Island firms were All Immigration Services of Great Neck, run by Ruth and Isaac Shalom, at 15 Cornell Dr., and Alisandra Multiservices, operated by Sandra Peguero, at 769 Commack Rd., Brentwood. The third firm that Cuomo said would cease operation was Immigration Solutions and Systems, run by Mary DiSerio, at 304 Park Ave. South in Manhattan. Thomas Toscano, the attorney for the Great Neck firm, said only, "The attorney general wields a lot of power and we made a business decision to settle this matter." Peguero's attorney, Cynthia S. Vargas, said in an e-mailed statement, "Alisandra Multiservices Inc. maintains that they did not defraud anyone in the community and that their violations were technical in nature." Mary DiSerio, the head of Immigration Solutions and Systems, said, "I entered into an agreement with the attorney general because I could not afford the cost of litigation." One of the three immigration-advisory businesses that Cuomo filed civil suit against to halt operations was Professional Solutions Consultants which, he said, is operated by Clover Perez at 193-10 and 180-23 Linden Blvd., in St. Albans, Queens. An unidentified woman on Cuomo's phone call said she was a victim of the firm, spending $17,000 to get green cards for her three adult children, but getting nothing. "I thought I was playing by the rules," the woman said. Bernard Udell, the attorney for the St. Albans' firm, said Perez is "an honest woman who did her best to provide" services, and denied that his client had cheated the woman."

FREE Mortgage Foreclosure Legal Consultation Clinics by Nassau County Bar Association

Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the Nassau County Bar Association (NCBA) headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County. Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources. In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance. Reservations are required by calling the Bar Association at 516-747-4070 between 9:30 a.m. - 4:30 p.m.

EMPLOYERS AND UNEMPLOYMENT INSURANCE

Most of my cases involve claimants who seek a hearing after being denied unemployment insurance benefits for alleged misconduct, etc. as a result of an investigation by the Department of Labor. I am now seeing cases with claimants who, after have been determined by the Department of Labor to be entitled to unemployment insurance benefits despite the allegations of misconduct, etc. by the employer, are being brought into hearings by the employer. I have one case where the employer is seeking to appeal an adverse determination it received after a hearing. Some employers will put up a strong fight to get out of paying unemployment insurance. Remember, if you are receiving benefits, an employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits.

From Newsday - Job Loss and Foreclosure

Job loss now reflected in foreclosure numbers

August 18, 2009 by TOM INCANTALUPO / tom.incantalupo@newsday.com

One lawyer calls it "Chapter 2" of the housing crisis: Increasingly, home foreclosures are the result of job loss, not subprime borrowers' getting slammed by resetting variable-rate mortgages or payments they'd have had trouble making even in a healthy economy.

And, experts said, solutions such as refinancing, stretching out loan terms and reducing interest rates are tougher to find when the household has either a greatly reduced income or none at all except for unemployment benefits. Making matters worse, falling home prices have made refinancing nearly impossible for many homeowners - employed or not - whose mortgages now exceed their home's value.

"It's a lot more difficult to work with a client who has no income," said Peter Elkowitz Jr., president of the Long Island Housing Partnership, a Hauppauge-based organization that offers counseling for homeowners in financial distress.

The trend nationally was documented in May in a report by the Mortgage Bankers Association, a trade group based in Washington, which said that in the first three months of 2009 the foreclosure rate on prime, fixed-rate loans had doubled from a year earlier and, for the first time since the rapid growth of subprime lending, represented the largest share of new foreclosures.

"More than anything else, this points to the impact of the recession and drops in employment on mortgage defaults," Jay Brinkmann, the group's chief economist, said in a statement.

Nassau and Suffolk had the state's second and third highest numbers of newly filed foreclosure cases last month, 736 and 725, respectively, according to RealtyTrac, an online market for foreclosed properties. The Island's unemployment rate was 7.5 percent in June, the highest since 1992. The national rate was 9.4 percent in July.

"Now we are definitely seeing more people either unemployed or where there's been some kind of change in their employment," said Martha Krisel, a Nassau County attorney who also chairs the Nassau County Bar Association Mortgage Foreclosure Task Force. "Often, it's not a huge difference in income, but it's enough that the mortgage payment is impossible."

The housing partnership said it has added two more foreclosure counselors and what executive director Diana Weir calls a "triage person" to get the help process in motion, sending a packet to homeowners with instructions on how to gather needed documents.

Nassau and the bar association hold monthly clinics where attorneys offer free advice on foreclosure and personal bankruptcies. The next session is Sept. 14 at the association's Mineola offices. Reservations are required by calling 516-747-4070.

Noting the growing link between joblessness and foreclosure, Rep. Barney Frank (D-Mass.) has called for using some of the federal Troubled Asset Relief Program revenue to fund a program to lend money to help jobless homeowners avoid foreclosure.

MORE ON DWI IN NEW YORK

The following discussion about DWI in New York is also from the website of the DUI Foundation and their link is above on the title of this post:

"Third Conviction

Three or more alcohol-related convictions in New York State within ten years can result in permanent revocation of a driver's license. Although waiver requests are permitted after five months of revocation, the Department of Motor Vehicles will be the final determinant in when and whether or not a license can be returned. This is not an automatic process. In fact, the convicted driver must reapply for a license and may be required to take a driver's test again.

Moving up into the Class D felony group, convicted drivers will now face a mandatory minimum fine of $2,000, with a potential maximum charge of $10,000. Furthermore, these steep fines don't even include the mandatory conviction surcharge and potential crime victim's assistance fees. The fees alone may reach upwards of hundreds of dollars.

On this third strike, the offender gets to spend a week-and-a-half in jail, or they may be allowed to substitute it for 60 days of community service. Depending on the circumstances, as many as seven years of incarceration could be the punishment. This possible jail sentence is technically what moves the driver from E into the D felony class.

Three DWI convictions in New York State within ten years can be summed up quickly as:

•Fine: $2,000 - $10,000
•Jail sentence: ten days - seven years (or 60 days community service)
•License revocation: 18 months or more"

MORE ON DWI IN NEW YORK

The following discussion about DWI in New York is also from the website of the DUI Foundation and their link is above on the title of this post:

"Second Conviction

If charged with a second driving while intoxicated (DWI) offense within ten years of the first misdemeanor, the driver faces Class E felony penalties. The mandatory fine starts at $1,000 and can run up to $5,000. There is a minimum one-year license revocation, but an ignition interlock and alcohol assessment may also be required.

A driver convicted of a second DWI offense will go to jail for at least five days unless they receive a sentence for 30 days of community service in lieu of this mandatory term. The sentence could involve an incarceration period of up to four years.

A second conviction for aggravated DWI within five years of the first offense involves sentencing similar to that of a Class E felony. However, the driver's license is revoked for a longer period of time-at least 18 months.

Although class E felonies carry the lightest sentences of the five felony classes, the minimum jail time for this class is one year.

In short, a driver convicted of a second DWI offense within ten years of the first conviction is looking at:

•Fine: $1,000 - $5,000
•Jail sentence: Five days - four years (or 30 days community service)
•LICENSE REVOCATION: 18 months or more"

MORE ON DWI IN NEW YORK

The following discussion about DWI in New York is also from the website of the DUI Foundation and their link is above on the title of this post:

"First Conviction

Driving while intoxicated in New York State is no small infraction. If you are stopped by an officer who administers a field sobriety test, then follows up with a chemical test, and the driver is found to have a blood alcohol concentration of at least .08, the driver is bound to face a harsh sentence.

Driving while intoxicated (DWI) is crime. A first conviction, considered a misdemeanor, will result in a substantial fine, mandatory surcharge, license revocation, and a possible jail sentence. An Aggravated DWI is something else entirely.

The state will fine a minimum of $500 and a maximum of $1,000 for a first conviction. Depending on the circumstances of the conviction, an additional jail sentence of up to a year is possible.

After an initial conviction, the state suspends a drunk driver's license for a minimum of six months. The law mandates that the offender participates in a Drinking Driver Program, and a conditional license may be awarded upon completion of the program if they are lucky.

The conviction will remain on the driver's permanent record as a misdemeanor. Plus, the convicted driver can expect his or her insurance premiums to skyrocket.

An aggravated DWI (BAC of .18 or higher) has far more severe consequences. Conviction of this first offense can result in double the fines of an average DWI conviction. Fines can be as steep as $2,500 in conjunction with a possible year-long jail sentence. A minimum of a one-year license revocation is also mandated.

In summary, the first DWI conviction in the State of New York entails:

•Fine: $1,000 - $2,500
•Jail sentence: Up to one year
•License revocation: One year or more"

DWI IN NEW YORK

As a member of the Lawyers Assistance Program Committee at the Nassau County Bar Association, one area that has begun to interest me, and which I am preparing to study and concentrate in, is Driving Under The Influence, a huge problem in Long Island as we read our daily papers. The following discussion about DWI in New York is from the website of the DUI Foundation and their link is above on the title of this post:

" New York State DWI, DUI

Each state has the power to determine and impose penalties for drivers who violate traffic laws, which includes driving under the influence of drugs or alcohol.

In New York, all drivers must take an alcohol test if a police officer asks for one. This is known as the implied consent law, which means that anytime a person drives a vehicle, he or she consents to an alcohol test. The test determines how much alcohol is in a driver's bloodstream. A driver is considered impaired when his or her blood alcohol content is 0.08% or higher.

Drivers under the age of 21 are subject to the zero tolerance law, which lowers the legal blood alcohol content level to 0.02%. If it is determined that a person has a BAC level of 0.15% or above, he or she is subject to the enhanced penalty policy, which means that the penalty for violation increases in severity.

For a driver's first alcohol-related offense, his or her license is suspended for 90 days. For the next two offenses, the driver's license is suspended for six months each time. New York does not require jail time after the second offense, whereas other states do.

New York requires alcohol education in order for a driver's license to be reinstated. After the second offence, the driver risks the possibility of having his or her vehicle confiscated. However, in many states, the penalties and fines associated with drunk driving can be mitigated if an alcohol education program is completed. Normally, these programs offer drunk driving prevention education and assess the offender's drinking habits. If the offender is determined to be alcohol-dependent, he or she can be ordered to participate in counseling.

Installing an ignition lock in repeat offender's cars is a possibility in the state of New York. An ignition lock is a machine that is connected to a car's ignition and checks the driver's blood alcohol content level. The driver has to blow into the machine to start the car and do so from time to time while the car is running. If alcohol is detected, the car either does not start or turns itself off.

New York allows hardship licenses if an offender's license is suspended. The offender is allowed certain driving privileges, such as driving to work, in case a hardship is present, such as being the family's sole breadwinner.

New York is very strict about prohibiting open alcoholic beverage container inside a vehicle. Neither the driver nor the passenger may be in possession of an open bottle or can of alcohol. Some states only make it illegal for the driver to have an open container."

Cuomo freezes assets of loan company Amerimod, owner

To interest of those who had loan modifications with Amerimod.

Paterson’s plan to increase penalties for drunk driving with kids

Paterson’s plan to increase penalties for drunk driving with kids

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DO YOUR ESTATE PLANNING NOW

Many times, I have received calls such as the following: "We have a medical emergency: X is going into surgery tomorrow morning and we don't know if X will come out alive. We need a will." DON'T WAIT UNTIL THE LAST MINUTE. Estate Planning is not something to put off and it doesn't have to be permanent. Hope for the best but be prepared for the worst. Wills, Powers of Attorney, Proxy's, etc. can always be changed - irrevocable trusts are another creature. But for most people, here are the basic tools you want to have at any age:
1. Will.
2. Power of Attorney (remember law changes on September 1)
3. Health Care Proxy (Living Will is not necessary but an option)
4. Designation Of Remains
5. Standby Guardian Designation (when minor children or special needs individuals are involved)
Of course, certain individuals who are elderly, have children or family with special needs, estate tax or asset issues, etc. may want to consider irrevocable and/or revocable trusts and medicaid/medicare, etc. planning. Most of these can be prepared by your regular attorney if you have one, but of course, you would also want to consider consulting with attorneys in other states where you have property located, a Tax lawyer, an accountant, you family and even a social worker and/or a separate Elder Law attorney to discuss the effects your estate plan would have on eligibility for senior benefits, etc.

FINAL THOUGHTS ON LIVING TRUSTS

My concerns about the Living Trust are the same with respect to reverse home mortgages (which I had a discussion with earlier with someone on my Facebook page): a Living Trust can be a great alternative for some older Americans but they are not for everyone and the confusion is compounded by there being so much promotion by firms and others regarding these instruments, instruments which can be as powerful as a Power of Attorney or a regular Will. Right now, I suggest that anyone seeking a Living Trust should consult with their regular attorney if they have one, attorneys in other states where they have property located and which would be placed in the trust, an accountant, their family and perhaps even a social worker or a separate Elder Law attorney to discuss the effects a Living Trust would have on estate planning, eligibility for senior benefits, etc. And yes, this makes the process costly.

NYS PARENT EDUCATION AND AWARENESS PROGRAM

The New York State Parent Education and Awareness Program (“Program”) is an initiative of former Chief Judge Judith S. Kaye, who announced in her 2001 State of the Judiciary address her wish to institutionalize parent education and awareness programs in New York State, to improve the quality of court outcomes involving children in such situations. The New York State Parent Education and Awareness Program is designed to educate divorcing or separating parents about the impact of their breakup on their children. The primary goal is to teach parents ways they can reduce the stress of family changes and protect their children from the negative effects of ongoing parental conflict in order to foster and promote their children’s healthy adjustment and development. Four topics are addressed in the Parenting & Child Well-Being portion of the curriculum: 1) Creating and Maintaining Supportive Parent-Child Relationships; 2) Providing a Stable, Supportive Home Environment; 3) Maintaining Healthy Parental Functioning & Psychological Well-Being; and 4) Protecting Children from Ongoing Conflict Between Parents. There is also an overview of the Legal Process. The various programs that are currently certified throughout New York State by the Program are set forth in the list of Certified Parent Education Providers (“Provider List”) on the Program's Home Page. This list is continually updated. A link to the Program's site is above - just click on the title of this blog.

BATTLE ON THE HOME FRONT

A proposal to modify mortgages in bankruptcy failed in Congress and this article discusses why it's what's needed in fighting foreclosures.

MINI COBRA CHANGES

Another lawyer alerted me of this and I hope it will be helpful to many Nassau residents who now find themselves unemployed. Around a week ago, a new New York State law made several noteworthy changes. It can be found at New York State Insurance Law section 3221 and basically New York employees who leave employment voluntarily or involuntarily may now receive insured continuation health coverage, under New York State “mini COBRA”, for up to 36 months.

If the employee is receiving insured federal COBRA continuation health coverage, New York’s “mini COBRA” generally will kick in and extend the 18 months of the federal COBRA coverage for an additional 18 months (36 months total) after the 18 months of federal COBRA have been exhausted. Thus, health insurance plans which are already subject to federal COBRA are now also subject to New York State’s “mini COBRA.” Prior to this new law, New York’s “mini COBRA” did not apply at all to a health plan if federal COBRA applied to that plan. The new law takes effect as of July 1, 2009 and applies to all policies and contracts issued, renewed, modified, altered or amended on or after that date.

Another new law will take effect on September 1, 2009, and applies to all policies and contracts issued, renewed, modified, altered or amended on or after that date. Health insurance coverage for dependent adult children of employees can now be extended to age 29. Under many policies, their coverage was cut off at age 23 or, if later, at college graduation.

HOW TO LOSE A CLIENT THROUGH ARBITRATION

When I was in law school, there were and still are many schools of thought regarding alternative dispute resolution, like arbitration. Arbitration is a form of alternative dispute resolution, a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. It was, for many years, argued that arbitration was more cost effective than going to court and that decisions would be reached earlier. On my Facebook site at www.facebook.com/jmprobstein, I have a link to a recent article from Consumer Reports entitled "Locked Out Of The Courts" that discusses the problems that consumers are having with arbitration clauses forced upon them. But it's not just consumers that have this problem! Let me relate how I lost a client from recommending that the client, a retailer, put in an arbitration clause in their agreement with consumers. I represented this company in many litigations so after two major litigations, I suggested that we revise their agreement to include an arbitration clause and that this would reduce the costs of any future litigation. Well, one litigation came up from a wealthy and very angry consumer who decided that they would incur all the costs of arbitration for reasons that are not relevant. Because the point is: the arbitration was so costly, dragged on for over a year, dozens of hearings, etc., that my client realized that the court process was less costly and quicker. And they were so disappointed with my suggestion of an arbitration clause, that afterwards they retained new counsel. Arbitration may have it's advantages, but to date, I have only seen it's disadvantages. In fact, just several years back, there was a dispute between two parties who were subject to an arbitration clause. Because of my expertise, I was appointed an arbitrator by one side and the other side appointed another lawyer as an arbitrator. Myself and the other lawyer needed to appoint a third neutral arbitrator. It took months and thousands of dollars for both sides to agree to the neutral arbitrator and they were so annoyed by the high costs and fees, that they decided to settle the matter. The fact is: the clients could have started an action in the courts, at a cost that would have involved less fees, and come to the same early realization that the matter should be settled.

DON'T DEFAULT ON CIVIL LAWSUITS

A break from "Living Trusts" as I met with a client recently who defaulted on a multimillion dollar lawsuit served and filed almost a year ago. And although the client consulted with an attorney on it, no answer was ever filed. I understand the desire to follow the advice of Scarlett O'Hara in "Gone With The Wind" when she stated at one crisis in the film: "I can't think about that right now. If I do, I'll go crazy. I'll think about that tomorrow." DON'T - THINK ABOUT IT NOW AND GET HELP! Of course, criminal matters are a different story: you can try to "jump bail" and run away but usually the law will catch up to you. But if you have been served in a civil action, and I see this in all sorts of civil matters such as matrimonial proceedings, mortgage foreclosures, landlord-tenant matters, etc., PLEASE DON'T DEFAULT - file an answer, by an attorney or even if you do it on your own, file an answer. To vacate a default, your lawyer must make a motion to the court to open the case and allow you to file an answer. It's costly and many motions to vacate default judgments are denied on the ground that defendant failed to establish both a meritorious defense to the action and a reasonable excuse for the default. Now of course, some defaults may arise under a problem called "sewer service" which the New York State Attorney General is taking action. Here is their July 23 Press Release on the issue:

"WESTCHESTER, NY (July 23, 2009) - Attorney General Andrew M. Cuomo today announced his office has sued 35 law firms and two debt collectors in New York State in order to throw out an estimated 100,000 default judgments improperly obtained against New York consumers. This is the latest action in Cuomo’s ongoing investigation into unlawful debt collection practices.

According to the lawsuit filed Tuesday in New York State Supreme Court, Erie County, the companies relied on a Long Island company, American Legal Process (ALP), to notify New York consumers that they faced debt-related lawsuits. ALP, however, failed to properly serve consumers across the state with legal papers, causing thousands to unknowingly default and have costly judgments entered against them without the chance to respond or defend themselves. In April of this year, Cuomo’s Office announced criminal and civil cases against ALP and its owner, William Singler, for this fraudulent business scheme.

Today’s lawsuit is an effort to provide relief to the thousands of consumers facing costly default judgments as a result of ALP’s unlawful practices. The suit asks the court to vacate all default judgments secured against New York consumers in cases in which the firms (1) used ALP to serve legal process in commencing a lawsuit, and (2) the firms are unable to provide the court with any evidence, other than ALP’s affidavit, that proper legal service was made. Cuomo also announced that his Office is serving subpoenas to two other New York State process servers in its ongoing investigation into fraudulent debt collection practices. Those two companies are We Serve It for You Process Serving Agency, of Brockport, NY and North American Process Serving, located in Erie County, with a satellite office in Nassau County.

“Our legal system is defined by due process and the guarantee that every New Yorker will get the chance to defend himself or herself in court,” said Attorney General Cuomo. “ALP’s scheme undermined the foundation of this system and denied thousands of individuals their day in court. This lawsuit and today’s expansion of our investigation are key steps in our efforts to uproot unlawful debt collection practices and undo the considerable harm they inflict on New York consumers.”

ALP, as a legal process server, was hired by high-volume debt collection law firms in New York to serve legal papers, usually a summons and complaint, notifying individuals that they are being sued and must answer the complaint. ALP, however, allegedly engaged in “sewer service,” where process servers take advantage of individuals facing lawsuits by failing to properly alert them and denying them the chance to respond. As a result, tens of thousands of judgments were obtained against unsuspecting New Yorkers, many of whom first learned they were being sued when they found their bank accounts frozen or their wages garnished. ALP covered up the fraud by falsifying sworn affidavits of service in courts across New York.

The law firms and debt collectors sued today then used these false affidavits to obtain default judgments against NY consumers. Between January 2007 and October 2008, these law firms and debt collectors filed more than 100,000 lawsuits in every county in New York State, with the vast majority of the suits being debt collection actions. In a large percentage of the cases sampled and analyzed, the defendants never answered the lawsuit and the law firms sought and obtained default judgments from the courts. In seeking the default judgments, the firms made use of ALP’s fraudulent affidavits that claimed that the individual defendants had been given proper legal notice of the suits.

To rectify ALP’s widespread fraud on New York’s courts and consumers, today’s lawsuit, filed on behalf of the Honorable Ann Pfau, Chief Administrative Judge of the New York State Unified Court System, invokes the broad remedial powers granted to New York’s administrative judges to correct improperly obtained default judgments. In addition to seeking to vacate all of the default judgments where the sole evidence that the defendant received notice of the suit is an ALP affidavit, today’s lawsuit asks the court to order the law firms and debt collectors to:

-Inform the New York State Unified Court System of each actions in which they used ALP to serve legal process and in which a default judgment was granted;
-Notify all the parties in those actions of the existence of this lawsuit and their right to be heard; and
-Notify the court of amount of any default judgments taken in any of the relevant actions, as well as whether the debtor paid any amount to satisfy the default judgment.
-Additionally, where a default judgment is ultimately vacated, today’s suit asks the court to direct that proper restitution be made to any debtor who made payment on an improperly obtained default judgment. The Attorney General’s Office estimates that the average default judgment totaled approximately $5,474.

Attorney General Cuomo’s Office is also determining which other law firms statewide relied on ALP to serve legal process on New Yorkers facing lawsuits. More than 20 such firms have been identified to date and his Office is notifying those firms of its intent to seek to vacate any default judgments those firms have obtained based on ALP affidavits of service.

Cuomo also announced today that his Office is serving subpoenas to two other New York State process servers: We Serve It for You Process Serving Agency and North American Process Serving. The subpoenas seek to uncover the companies’ policies and procedures for complying with New York State law on the service of process, including any database and records reflecting services made by their employees.

Carolyn Coffey, an attorney with MFY Legal Services, a nonprofit provider of free legal services in New York, said: “Over and over again we see hundreds of the most vulnerable New Yorkers -- the elderly, disabled, and working poor -- blindsided by default judgments in lawsuits that they never even knew about until after the cases were over. Our justice system is built on the basic premise that everyone has a right to be heard in court before a judgment can be entered against them, and the debt collection law firms that engage in sewer service deny New Yorkers this fundamental right. MFY commends Attorney General Cuomo for taking these steps to remedy the devastating effects of sewer service, and for sending the message to debt collection law firms that they must comply with the most basic requirements of due process.”

The law firms and debt collectors named in today’s suit are: Forster & Garbus; Sharinn and Lipshie; Kirschenbaum & Phillips, P.C.; Solomon and Solomon, P.C; Goldman & Warshaw, P.C.; Eltman Eltman and Cooper; Eric M. Berman, P.C.; Stephen Einstein & Associates, P.C.; Fabiano and Associates; Jones Jones Larkin O’Connell; Panteris & Panteris, LLP; Zwicker and Associates; Relin, Goldstein & Crane; Woods Oviatt Gilman; Leschack & Grodesnky; Hayt Hayt & Landau; Pressler & Pressler; Jaffe & Asher; Mullen & Iannarone; Arnold A. Arpino & Associates; Houslanger & Associates; Mann Bracken, LLC; Smith Carroad Levy & Finkel; McNamee, Lochner Titus & Williams; Thomas Law Office; Fleck, Fleck & Fleck; Eric Ostrager; Cohen & Slamowitz, LLP; Cullen and Dykman LLP; Winston & Winston, P.C.; Cooper Erving & Savage, LLP; Robert P. Rothman, P.C; Gerald D. DeSantis; Greater Niagara Holdings, LLC; Rodney A. Giove; Advanced Litigation Services, LLC; and Jason L. Cafarella.

This civil lawsuit and investigation is being handled by Assistant Attorneys General James Morrissey and Nathan Reilly, in conjunction with Dennis Donnelly, George Danyluk, Aric Andrejko and Dan Johnson of the Internal Audit Unit of the New York State Unified Court System"

THE ERIE COUNTY BAR ASSOCIATION ON "LIVING TRUSTS"

From The Bar Association of Erie County Living Trusts: A Consumer's Guide- What Is a Living Trust?:

"A living trust is an agreement between an owner of certain assets and a trustee, whereby the owner (the trust's creator) transfers assets into the name of the trustee, who in turn, invests, manages, and distributes them for the benefit of the creator and/or other beneficiaries pursuant to the terms of the written trust agreement. It typically provides for the management of assets during the creator's lifetime as well as for their disposition after his or her death. A living trust is therefore to be distinguished from a testamentary trust created under a person's will, which comes into being only on death.

Some living trusts, such as life insurance trusts (designed to keep insurance proceeds out of their creators' taxable estates) and so-called "Medicaid trusts" (established to preserve assets against depletion by the costs of long-term health care), are irrevocable.

The type of living trust described throughout these pages is a revocable trust, which can be changed or revoked by its creator at any time. Usually, this revocable living trust provides that income from trust assets is to be paid to the creator during his or her lifetime. Upon the creator's death, the assets may be held in further trust for other beneficiaries or distributed outright to them.

Why Are Living Trusts Becoming So Popular?

Living trusts are being heavily promoted as will substitutes and probate-avoidance devices here in New York and throughout the nation. Aggressive marketing, often by so-called financial planners who are not attorneys, through free seminar programs or by mail-order, do-it-yourself trust kits, has prompted many people, especially senior citizens, to purchase living trusts, sometimes for thousands of dollars, and to rely on them as the sole means of disposing of their estates.

Much of the business of marketing living trusts is done by out-of-state companies through regional franchise operations. Hence, a New York consumer may purchase a pre-printed trust document that does not conform to New York law and requirements. Unfortunately, also, many of the advantages claimed for living trusts by promoters are exaggerated, if not directly misstated. Complaints from senior citizens about the high-pressure sales tactics of trust promoters have prompted investigations by the attorneys general of a number of states and resulted in some indictments. In New York, the attorney general has issued a warning about living trust scams.

What Is Probate and Should It Be Avoided?

The promoters who are aggressively marketing living trusts as will substitutes seek to convince consumers that probate is a lengthy, expensive process from which only living trusts can and should protect them.

Probate in New York State, however, differs from the process in many other states. In some states, courts exercise continuing jurisdiction over estates to protect the interests of potential will contestants until approval of the final distribution of assets. In such states, the term "probate" refers to the entire course of the estate administration which, depending on the size and complexity, can take as much as several years.

Probate in New York, however, is simply one part, the initial stage, of the estate administration. Probate signifies the procedure to prove the validity of a deceased person's will and involves establishing that the maker of the will signed it in accordance with the legal requirements and that he or she possessed the proper mental capacity. The process ends with the court's appointment of the executor to administer the estate.

In routine cases, New York probate takes a matter of days or weeks; in more complicated situations involving heirs who are under disability or who cannot be located, several months. Consumers should be aware that in New York, apart from probate, the administration of assets under a living trust after the creator's death takes approximately the same amount of time as administration of an estate.

When Is a Living Trust Appropriate?

A living trust can be an important estate planning tool for some people in some circumstances, but it is not appropriate for everyone. Since a living trust provides for lifetime management, it may be especially suitable for an older person with moderate to substantial assets ($150,000 and up) who no longer wants to manage those assets. Such a person can create a trust, with a bank or trusted individual as trustee, to relieve the creator of investment and management worries during his or her lifetime and also to dispose of the trust assets on death.

A living trust can also be useful to hold out-of-state property. If a person dies owning real property in his or her own name (for instance, a condominium or vacation home) in another state, the executor of the will may have to initiate a separate probate proceeding in that state to pass title to the property, after the original probate in the state of domicile. Placing that property in a living trust avoids the necessity for the additional proceeding in the non-death state. Tax proceedings, however, may still be necessary in the other state, whether or not the realty was held in a living trust.

Who Can Be a Trustee?

Under current New York law, the creator of the trust can be a trustee as long as he or she is not the sole trustee and the sole beneficiary. A trust can have several trustees. The creator can name a trusted family member or friend, or a bank or trust company, to be trustee or a co-trustee. A successor trustee should also be named in the trust agreement. Banks and individuals can charge commissions for acting as trustees. Commission rates are prescribed by law, though the trust agreement can set forth different rates. Family members may waive trustees' commissions.

Is the Transfer of Assets to a Living Trust Subject to Gift Tax?

Since the creator retains the right to revoke or terminate the trust, the transfer of assets is not considered a completed gift for gift tax purposes. No gift tax returns need to be filed and no gift taxes are owed.

Who Pays Income Taxes on Income Earned by Trust Assets?

In the typical revocable living trust, in which the creator has retained the right to receive the income as well as revoke the trust, all income is taxed to the creator. The trustee may file a simple tax return annually to show the trust's income and to indicate that it will be reported on the creator's personal income tax return.

Does a Living Trust Save Estate Taxes?

Some consumers are purchasing living trusts in the mistaken belief that revocable living trusts offer estate tax savings that wills do not. In fact, because the trust's creator retains the right to terminate the trust and obtain the property back, trust assets are includable in his taxable estate at death. In a living trust is is possible to make use of the same type of tax planning utilized in wills to maximize estate tax savings. A living trust, however, offers no advantage over a will in this regard.

Does a Person with a Living Trust Also Need a Will?

If "everything" the creator of a trust owns is put into the name of the trustee during the creator's lifetime, a will is not needed, since the trust will dispose of that property at death. Practically speaking, however, it is neither possible nor desirable for most people to transfer everything into a trust. Furniture and other personal property, automobiles, and checking or other bank accounts typically remain in the creator's name and thus become part of the probate estate at death.

In order to dispose of these assets at death, a will is necessary. The will can make a disposition of personal property and then "pour-over" or distribute the balance of the estate to the living trust, to be disposed of in accordance with its terms. Even if a person has a living trust, therefore, he or she must have a will, and if the assets remaining in that person's name exceed $10,000 in value or consist of real property, the will must be probated.

Can a Living Trust Be Contested?

The validity of a living trust and the mental competency of its creator can be challenged in court. Under current New York law, the legal capacity required to sign a trust is higher than the capacity required to sign a valid will, which may make a living trust easier to contest than a will.

How Do the Costs of a Living Trust Compare to Those of a Will?

In comparing the costs of trusts and wills, consumers should take into account the cost of preparation of the document, attorneys' fees for administration and settlement after the death of the testator or creator, executor's and trustee's commissions, court filing fees, and the costs of funding the trust. Although some trust marketers claim that living trusts save the alleged high costs of probate, they may fail to note that except for court filing fees, attorneys' fees for administering and settling an estate are generally comparable to attorneys' fees for administering and distributing assets under a living trust after its creator's death.

Court filing fees for the probate of a will do not represent the kind of onerous expense some trust promoters allege, ranging from $35 for an estate valued at under $10,000 to $1,000 for assets valued at over $500,000. The probate filing fee for the estate of a middle class decedent with probate assets between $100,000 and $250,000 is a relatively minimal $335. And, any savings in court filing fees realized with a living trust may be more than offset by the cost of the trust document itself, which, even for a fill-in-the-blank form, can be one thousand to several thousand dollars.

Taking all such factors into consideration, costs associated with living trusts may in many cases be comparable to, but can be even higher than, costs for probating a will and administering an estate.

Caveat

Consumers are being bombarded with a great deal of information about living trusts. Some of that information is misleading, and some of the claimed advantages of living trusts are exaggerated. It is therefore important for someone considering a living trust to consult with an attorney experienced in estates and trust law to discuss its pros and cons in light of his or her particular circumstances, and determine whether it may be an appropriate part of his or her estate plan.

NOTE: This material, based on New York Law, is issued to inform, not advise. No person should ever apply or interpret any law without the aid of an attorney who knows the facts, because the facts may change the application of the law."

THE FLORIDA BAR ASSOCIATION SPEAKS ON "THE LIVING TRUST"

The Florida Bar provides information for the public on certain general areas of law as well as specific legal issues. Here is their discussion on "The Revocable Trust in Florida"

"The revocable, or “living,” trust is often promoted as a means of avoiding probate and saving taxes at death. The revocable trust has certain advantages over a traditional will, but there are many factors to consider before you decide if a revocable trust is best suited to your overall estate plan.

WHAT IS A REVOCABLE TRUST?

A revocable trust is a document (the “trust agreement”) created by you to manage your assets during your lifetime and distribute the remaining assets after your death. The person who creates a trust is called the “grantor” or “settlor.” The person responsible for the management of the trust assets is the “trustee.” You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is “revocable” since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.

During your lifetime the trustee invests and manages the trust property. Most trust agreements allow the grantor to withdraw money or assets from the trust at any time, and in any amount. If you become incapacitated, the trustee is authorized to continue to manage your trust assets, pay your bills, and make investment decisions. This may avoid the need for a court-appointed guardian of your property. This is one of the advantages of a revocable trust.

Upon your death, the trustee (or your successor if you were the initial trustee) is responsible for paying all claims and taxes, and then distributing the assets to your beneficiaries as described in the trust agreement. The trustee’s responsibilities at your death are discussed below.

Your assets, such as bank accounts, real estate and investments, must be formally transferred to the trust before your death to get the maximum benefit from the trust. This process is called “funding” the trust and requires changing the ownership of the assets to the trust. Assets that are not properly transferred to the trust may be subject to probate. However, certain assets should not be transferred to a trust because income tax problems may result. You should consult with your attorney, tax advisor and investment advisor to determine if your assets are appropriate for trust ownership.

WHAT IS PROBATE?

Probate is the court-supervised administration of a decedent’s estate. It is a process created by state law to transfer assets from the decedent’s name to his or her beneficiaries. A personal representative is appointed to handle the estate administration. The probate process ensures that creditors, taxes and expenses are paid before distribution of the estate to the beneficiaries. The personal representative is accountable to the court as well as the estate beneficiaries for his or her actions during the administration. For probate estates having less than $75,000 of non-exempt assets, Florida law provides a simplified probate procedure, known as summary administration.

ARE ALL ASSETS SUBJECT TO PROBATE?

No, only assets owned by a decedent in his or her individual name require probate. Assets owned jointly as “tenants by the entirety” with a spouse, or “with rights of survivorship” with a spouse or any other person will pass to the surviving owner without probate. This is also true for assets with designated beneficiaries, such as life insurance, retirement accounts, annuities, and bank accounts and investments designated as “pay on death” or “in trust for” a named beneficiary. Assets held in trust will also avoid probate.

HOW DOES A REVOCABLE TRUST AVOID PROBATE?

A revocable trust avoids probate by effecting the transfer of assets during your lifetime to the trustee. This avoids the need to use the probate process to make the transfer after your death. The trustee has immediate authority to manage the trust assets at your death; appointment by the court is not necessary.

The “funding” of a revocable trust is critical to successfully avoid probate. Those persons who do not fully fund their trusts often need both a probate administration for the non-trust assets as well as a trust administration to completely distribute the assets. Because the revocable trust may not completely avoid probate, a simple “pour over” will is needed to transfer any probate assets to the trust after death.

HOW DO I KNOW IF MY ASSETS ARE PROPERLY TITLED TO MY REVOCABLE TRUST?

The account statement, stock certificate, title or deed will make some reference to the trust or to you as trustee. You might also elect to fund your trust by naming the trust as a beneficiary of life insurance or other similar arrangements. Your attorney and financial advisor may assist you with the transfer of assets to your trust. If your trust will own real estate then it is important to have the deed prepared by an attorney. The attorney will consider the impact of existing mortgages, title issues and homestead restrictions when the deed is prepared.

CAN THE TRUST HOLD TITLE TO MY HOMESTEAD?

In some situations your homestead property can be transferred to your trust. Most Florida counties have special requirements to maintain the homestead tax exemption and special language may be required in the trust agreement and the deed. However, homestead property may lose its exemption from creditors when title is held in a revocable trust—the bankruptcy law on this point is unsettled. Your attorney can advise you on whether placing your homestead in your trust is appropriate, and if so, the requirements for a valid transfer.


DO I BENEFIT BY AVOIDING PROBATE?

Avoiding probate may lower the cost of administering your estate and time delays associated with the probate process. However, many of the costs and time delays associated with probate, such as filing a federal estate tax return, will also be necessary with a revocable trust. The administration of a revocable trust after death is similar to a probate administration. The trustee must collect and value the trust assets, determine creditors and beneficiaries, pay taxes and expenses, and ultimately distribute the trust estate. A trustee is entitled to a fee for administration of the trust, as is the personal representative of an estate. To the extent professional services of attorneys, accountants and estate liquidators are used to complete the process, the savings may be marginal.

On the other hand, avoiding probate in multiple states is a definite benefit. Because of the nature of real estate, probate is usually required in every state in which you own real estate. This can usually be avoided by transferring ownership of the real estate to your trust during your lifetime.

HOW ARE CREDITORS SATISFIED?

Florida’s trust law does not have a specific procedure for identifying and paying creditors at death. The creditors have up to 2 years from the decedent’s death to file claims against the estate. The trustee may be reluctant to distribute the trust assets to the beneficiaries until he or she is satisfied that all claims have been paid, and 2 years is a long time to wait. For this reason, some clients choose to open a probate estate in addition to the trust administration to take advantage of the probate claim process. The probate law limits the time for creditors to file claims against the estate (generally 3 months from the date of notice), and also provides a process for objecting to claims.

DOES THE TRUST PROVIDE PROTECTION FROM CREDITOR CLAIMS?

In Florida, the trust assets are not protected from the claims of your creditors. During your lifetime the assets in a revocable trust are treated as owned by you, and subject to the claims of your creditor as if you owned them in your personal name. If the trust assets remain in trust after your death, the interests of the beneficiaries may be protected from their creditors by a “spendthrift” provision in the trust agreement. Florida law provides special protection for many types of assets, including assets owned by a husband and wife as “tenants by the entirety.” Consideration should be given to these assets when you decide how to fund your revocable trust. Your attorney can advise you on the types of assets that offer creditor protection and the effect of funding your trust with them.

DOES THE TRUST PROVIDE PROTECTION FROM THE ELECTIVE SHARE?

Florida law provides that a surviving spouse is entitled to a minimum portion of the decedent’s estate. This elective share is equal to 30% of the estate, including certain assets passing outside of probate. Generally, assets held in a revocable trust will be subject to the elective share. There are some exceptions to the elective share, and the right to receive an elective share can be waived by the spouse. You should consult with your attorney regarding the application of the elective share to your particular situation.

WHO PAYS FEDERAL INCOME TAX ON TRUST INCOME?

In most instances, the revocable trust is ignored for federal income tax purposes during the grantor’s lifetime. The income and deductions are reported directly on your individual income tax return. The trust will use your social security number as its tax identification number.

A revocable trust becomes a separate entity for federal income tax purposes when it becomes irrevocable, or stops reporting income under your social security number for any other reason. The trustee is then required to file an annual fiduciary income tax return. Taxable income, deductions and credits are determined in much the same way as for an individual. Trusts are also allowed a deduction for distributions to beneficiaries. In this way, the trust passes on income and deductions to the beneficiaries to be taxed on their personal income tax returns. Income that is not distributed to the beneficiaries is taxable to the trust.

DOES A REVOCABLE TRUST SAVE ESTATE TAXES?

Revocable trusts are often credited with saving estate taxes, but this is not entirely accurate. Your retained interest and power over the trust assets will cause the trust to be included in your taxable estate at death. The trust can be drafted to minimize the effect of estate taxes, but the same estate planning techniques are available to persons who choose to use a will as those who choose a revocable trust.

WHAT ARE THE TRUSTEE'S RESPONSIBILITIES?

Serving as trustee is no simple task. While very important, the prudent investment of trust assets is not a trustee’s only responsibility. Your trustee’s exact powers and duties will depend on the instructions in your trust agreement. But, in general, your trustee will:


Hold trust property
Invest the trust assets
Distribute trust income and/or principal to the beneficiaries, as directed in the trust agreement
Make tax decisions concerning the trust
Keep records of all trust transactions
Issue statements of account and tax reports to the trust beneficiaries
Answer any questions you and the beneficiaries may have concerning the trust

Your trustee may have broad powers or very limited powers. In either case, your trustee is a fiduciary and must follow a strict standard of care when performing trust functions.

WHO MAY ACT AS TRUSTEE OR SUCCESSOR TRUSTEE?

The choice of a trustee is extremely important, and may have tax consequences. You can name almost anyone as your trustee. Unlike the appointment of a personal representative of a probate estate, a trustee does not have to live in Florida or be related to you. You can name yourself or any other individual (subject to tax considerations), or a corporate trustee, such as a bank or trust company. The individual trustee can be a family member, friend or professional advisor. Many individuals appoint family members or friends as successor trustee, to assume responsibility for the trust management and distribution after their death. When a family member or friend is chosen, consideration must be given to the person’s qualifications, the potential for friction with other beneficiaries, and the potential burden you are placing on that individual. The trust agreement should allow these individuals to hire qualified professionals to assist them in their duties, such as attorneys, accountants and financial advisors.

HOW DO I KNOW WHAT I NEED?

This brochure is intended to give you a basic understanding of revocable trusts, but it cannot substitute for a thorough review with your estate planning attorney. A revocable trust must be implemented as part of an overall estate plan. Ownership of assets must be coordinated between the individual and the trust. Decisions must be made as to what assets are appropriate to fund the trust, the transfers must then occur, and the asset allocation should be periodically reviewed. Tax considerations must be discussed with qualified professionals. The trust agreement should reflect your family, economic and tax goals. A revocable trust can help you accomplish these goals when properly prepared and implemented.


[Revised: 4/07 ]© 2005 The Florida Bar"

THE FTC SPEAKS ON THE LIVING TRUST

From The Federal Trade Commission:

"Make Sure Living Trust Offers Are Trust-Worthy

You've worked hard for your money, so it's no wonder that you'll want some control over what happens to your assets in the event of your death. At the very least, you probably want to minimize or avoid potential hassles and headaches for your loved ones.

Many consumers turn to experts in estate planning for help in directing what happens to their assets after they die. There are several strategies consumers can choose from to make sure that their assets are distributed as they wish and in a timely way. Unfortunately, there also are scam artists who prey upon misinformation and misunderstanding about estate taxes and the length or complexity of probate.

Some unscrupulous businesses advertise seminars on living trusts or send postcards inviting consumers to call for in-home appointments to learn whether a living trust is right for them. Others sell living trust "kits" they never deliver, and still others use estate planning services to gain access to consumers' financial information and to sell them other financial products.

The Federal Trade Commission (FTC), the government agency that works to prevent fraud, deception and unfair business practices in the marketplace, advises consumers to proceed with caution. Before you sign any papers to create a will, a living trust, or any other kind of trust, the FTC suggests that you:

- Explore all the options with an experienced and licensed estate planning attorney or financial advisor.
- Avoid high-pressure sales tactics and high-speed sales pitches by anyone who is selling estate planning tools or arrangements.
- Avoid salespeople who give the impression that AARP is selling or endorsing their products. AARP does not endorse any living trust product.
- Do your homework. Get information about your local probate laws from the Clerk (or Register) of Wills.
- Make sure your living trust is properly funded — that is, that the property has been transferred from your name to the trust.
- Ask if the seller of a living trust is an attorney. Some states limit the sale of living trust services to attorneys.

Remember the Cooling Off Rule. If you buy a product or service in your home or somewhere other than the seller's permanent place of business (say, at a hotel seminar), the seller must give you a written statement of your right to cancel the deal within three business days.

Check out any organization that wants your business with the Better Business Bureau in your state or the state where the organization is located before you send any money for any product or service. This is a prudent step, but not altogether foolproof: there may be no record of complaints if an organization is too new or has changed its name.

For more information about living trusts and estate planning, including a list of the "terms of art" and their definitions, consumers can call the FTC toll-free, 1-877-FTC-HELP, and ask for the publication, Living Trust Offers: How to Make Sure They're Trust-worthy.

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad."

MORE ON "THE LIVING TRUST"

And finally from Attorney Evans: "Myth # 4: Even if it might do no good, a living trust will do no harm. Not necessarily. In their desire to avoid the alleged evils of "probate," many people jump out of the frying pan and into the fire, running directly into the arms of charlatans who are eager to sell "packages" of living trusts for exorbitant fees. And those trust documents may be poorly written, with the result that large fees have been paid for documents that actually result in unnecessary taxes, legal fees, or court costs. And the probate system is not without its advantages, because it requires notices to beneficiaries and a clear remedy if the estate is not distributed according to the will. In their desire to avoid probate litigation, many people create trusts that give fewer rights to their beneficiaries and so, if the trustee turns out to be dishonest or hostile, the beneficiaries of a living trust may find themselves hampered by the trust document in their attempts to recover their inheritances." His conclusion is that "Living trusts are good for some people, but not for everyone. Living trusts have both advantages and disadvantages, but most people don't need them and aren't helped by them. A living trust is most likely to benefit someone who lives in a state with complicated or expensive estate administration requirements .....who has life insurance or retirement benefits which need to be held in trust after death (because of minor children or for tax reasons), who owns real estate in other states (which might require probate proceedings in those other states), or whose investments are already being held and managed by some other person and that other person could serve as trustee at little or no additional cost." He also notes that the AARP publishes a booklet, "A Consumer's Guide to Living Trusts and Wills", a copy of which can be obtained by sending an email request to member@aarp.org. Now, there is still something that bothers me about the "Living Trust" and this discussion will continue.

MORE ON "THE LIVING TRUST"

Also from Attorney Evans: "Myth # 3: A living trust can be distributed faster than an estate. This is also wrong. There is no law preventing an executor from distributing all or any part of the estate at any time, as long as the executor is willing to assume the risk of loss if there are additional debts or taxes, or if the distribution is incorrect. The trustee of a living trust is also liable for debts and taxes, and may delay distributing assets for the same reasons. As a practical matter, most executors are reluctant to distribute assets until the death taxes have been settled, which can take from nine months to two years, and there is no reason for the trustee of a living trust to distribute assets any more quickly.

MORE ON "THE LIVING TRUST"

This is also from attorney Daniel P. Evans, from Pennsylvania: "Myth # 2: A living trust is cheaper to administer than an estate. This may be true for some persons in some states, but the generalization is wrong more often than it is right. In Pennsylvania, New Jersey, and many other states, the much-feared "probate of the will" usually takes less than an hour and does not require a lawyer. The real work in the administration of an estate is the collection of the decedent's assets, the payment of debts and death taxes, and the distribution of the remaining assets according to the will. The administration of a living trust is almost exactly the same, because the trust assets must be collected, the debts and death taxes must be paid, and the remaining trust assets must be distributed. The only advantage of a living trust is that if the decedent was not the trustee, the time and expense of searching for assets and transferring them to the executor might be avoided. That advantage must be weighed against the time and expense of transferring assets to a trustee during lifetime, as well as the inconvenience and loss of control when assets are held in the name of a trustee. Because the steps necessary to settle a trust are similar to the steps necessary to settle an estate, the legal fees should be about the same, and the executor (or trustee) should be able to negotiate a reasonable fee agreement after comparing the fees of different lawyers. Legal fees for the settlement of an estate will be higher than the fees for the administration of a trust in those few states (such as California and New York) that have complicated probate procedures or a statutory fee schedule for lawyers. In those states, having a living trust may help to reduce legal fees." Now it appears that the "Living Trust" may be useful for some New York residents but we need to examine this more.

MORE ON "THE LIVING TRUST"

This is from attorney Daniel P. Evans, from Pennsylvania, but I believe his statements regarding taxes applies to us in New York as he is talking about federal taxes: "Myth # 1: Living trusts save taxes. This is absolutely wrong. All of the assets in a living trust are subject to both state inheritance taxes and the federal estate tax, just like assets that pass through a probate estate. A living trust also saves no income taxes during lifetime and may actually increase income taxes after death, because some of the income tax rules for trusts are not as favorable as the income tax rules for estates (although an option now exists to elect to treat a revocable trust as part of the probate estate for federal income tax purposes). A trust that is created at death might save taxes in the future in a number of different ways, because a trust can provide income or other benefits to a person without adding those assets to the person’s taxable estate, but that kind of trust can be created by will and a revocable trust is not needed."

FILING FOR HEARING ON UNEMPLOYMENT BENEFITS

A case came to me yesterday wherein a person was requesting a hearing on an adverse determination; however, the adverse determination was made about 7 months ago and the client claimed it was never received although each week a claim was put in and no monies received. Let's examine the law on this. According to the NYS Department of Labor FAQ page: "You may request a hearing on any determination affecting your rights to benefits by writing a letter to NYS Department of Labor, P.O. Box 15131, Albany, NY 12212-5131. The request must be postmarked or otherwise proven to have been filed within 30 days after the mailing or personal delivery of the determination. Absent proof to the contrary, a determination shall be deemed to have been mailed on the date recited on it and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. Make sure you include your Social Security number on your hearing request and the reasons you disagree with the determination. You will be notified of the date, time and place of the hearing by the Administrative Law Judge section after your request has been processed." Here are some cases on the issue: 1. The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850) 2. Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080) 3. When claimant' s need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067) 4. A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)....there is more case law, but based on the above, how would you decide?