UNEMPLOYMENT INSURANCE - OUT OF STATE CLAIMS AND HEARINGS

If you currently live outside of New York State, but all of your work in the past 18 months was in New York State, you must file your claim with New York State. If you worked in 2 or more states in the past 18 months, you must file your claim with one of the states where you worked, regardless of where you reside. You may be able to combine wages from all the states where you worked in the past 18 months, OR use only the wages earned in the filing state. Once you file your claim in a state where you worked, that state will advise you of all your filing options in order to receive the highest benefit amount. Now suppose you are out of state, filed your claim in New York, but the Department of Labor has denied you benefits. You request a hearing. The hearing is to be held in New York. Do you have to come to NY for the hearing? No, you can attend by telephone but it does create some issues as it is more difficult to present a case by telephone, viz., introduction of evidence, cross-examination, etc. Personally, I chose not to represent a claimaint who can only attend by telephone as I do not believe I can perform to the best of my ability without first meeting with the client in person and discussing in person the case and evidence. Other lawyers may disagree.

UNEMPLOYMENT INSURANCE BENEFITS - THE EMPLOYER'S VIEWPOINT

The question many clients ask is why is my employer claiming I am disqualified for benefits for misconduct? Or voluntary separation. To view the effect of a claim for unemployment insurance benefits from the Employer's viewpoint, view the following the FAQ from the Department of Labor website by clicking on the title above or cut and paste the following into your web browser: http://www.labor.state.ny.us/ui/employerinfo/experienceratingfaq.shtm#0

UNEMPLOYMENT INSURANCE

Yesterday, I attended a CLE seminar on Unemployment Insurance Hearings sponsored by the Queens County Bar Association. As some of you know, the Department of Labor has on its websire The Interpretation Service Index, which "is a compilation of rules based on Appeal Board and Court decisions interpreting the Unemployment Insurance Law. It is intended to report, in summary form, decisions of current legal validity.
Each Index entry followed by an A-750 number is reported in its entirety in the Interpretation Service release of that number with commentary on its implementation. The Interpretation Services releases are also available for examination in the UI Appeal Board library, which is open to the public. This Index is updated periodically by publication of Interpretation Service releases (A-750 series) reporting relevant new decisions." I was advised at the seminar that, for various reasons, the website Index has not been updated regularly and that recent decisions from the Appeal Board and Court decisions has been more "pro-claimant".

UNEMPLOYMENT INSURANCE - UNION HEARING

Employee is a union member who is terminated. The union requests an arbitration and has an attorney for employee. In the meanwhile, employee has applied for unemployment insurance benefits and is denied for either misconduct or voluntary separation, etc. A hearing is requested by employee but the hearing is scheduled before the arbitration. Should the employee go ahead with the hearing prior to the arbitration? My initial suggestion would be to adjourn the hearing until the arbitration lawyer is at least consulted with. You would want to make sure with your arbitration attorney that nothing you do or say in the unemployment insurance hearing conflicts with your rights under the pending arbitration - or issues like collateral estoppel, res judicata, etc. But on the other hand, you are not receiving any money. I would like to hear from others on this.

MORTGAGE FORCLOSURE - NOV. 12

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 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. The next scheduled 2009 Clinics: November 12, 4-6 p.m.

UNEMPLOYMENT INSURANCE BENEFITS - MISCONDUCT

Here's another issue that came across my "desk" recently. Employee A and Employee B do not get along. Neither has seniority over the other. One day, they got into a fight and Employee let out with a profanity towards Employee B in front of other employees. No apology was given. Employee A was fired and the Department of Labor denied benefits for misconduct. But is this one incident, perhaps grounds for termination, also grounds for denial of employment benefits? Here are some cases on point:

1. An unprovoked insulting remark to a fellow employee causing argument and disturbance during working hours constituted misconduct. (Ref. Dec. M11-3-38R; similarly, in case of fighting, A.B. 43,010-54) (Also, A.B. 89,038 notwithstanding claimant was due to be discharged at end of shift because of no work.)

2. Objectionable behavior toward fellow employees, detrimental to employer's interest and repeated despite warnings, constituted misconduct in connection with employment. (Loud argument with co-worker in presence of customers) (A.B. 2038-40; A-750-57)

3. A first incident of profanity directed toward management in general, none of whom is present, does not constitute misconduct. (A.B. 365,511; A-750-1968)

How would you decide this case?

BANKRUPTCY

Sent to me from Chicago lawyer Richard G. Fonfrias, Eesq., Managing Partner at Fonfrias Law Group, LLC:

"Debunked Bankruptcy Myths:

MISCONCEPTION #1: Bankruptcy is dishonest. Not true. Most people honestly want to pay their bills, but sometimes things happen that make it impossible. These things include an unexpected lawsuit, judgment or income tax bill -- a fine that was considered excessive or in dispute -- and more. Bankruptcy is a right that protects honest people from harassment, lawsuits, wage garnishment and other creditor actions. Bankruptcy allows a fresh start. The same laws that are routinely used by corporate America, and the rich and famous, can protect you, your family and your business.

MISCONCEPTION #2: I will lose all my property in a bankruptcy case. Not so. The bankruptcy laws are designed to allow a fresh start. A fresh start would be impossible if you would lose all your property. The fact is that most people don’t lose anything in their bankruptcy. The bankruptcy law allows the State government to decide what property is protected

MISCONCEPTION #3: I can’t own anything after bankruptcy. Not true. In Chapter 7 you can keep the property that is protected in the bankruptcy. A Chapter 13 or Chapter 11 allows you to keep your property and repay debts over time. Many people buy and refinance cars and homes after filing a bankruptcy.

MISCONCEPTION #4: I will never be able to establish credit after a bankruptcy. Not true. Today, many stores and banks actively market to people who have filed bankruptcy. Mortgage companies do help applicants get new mortgages with a bankruptcy after two to three years. As a practical matter, you only file a bankruptcy when you can’t pay your bills. Because of that, your credit is probably already bad. A bankruptcy won’t make it any worse. Bankruptcy puts you in a better position to pay current bills and that should improve your chances of getting new credit.

MISCONCEPTION #5: Bankruptcy gets rid of all debts. Not so. Although most consumer and business debts are wiped out in bankruptcy, some debts are not affected. Certain debts can’t be eliminated in bankruptcy. They include child support, alimony, fines, restitution, some taxes, loans obtained by fraud, student loans, debts due to a DUI, and debts resulting from “willful and malicious” harm. Some of these can be handled effectively in a Chapter 13 bankruptcy.

MISCONCEPTION #6: I can protect my property by hiding it or giving it away before I file bankruptcy. No. It’s a crime to hide property. It’s also a crime to give property away without telling the Court in the bankruptcy filing.

MISCONCEPTION #7: I will lose my job if I file bankruptcy. Not true. The bankruptcy code prohibits an employer from discriminating based on a bankruptcy filing. In nearly 10 years of helping people in bankruptcy cases, I have never even heard of someone losing a job because of a bankruptcy filing.

MISCONCEPTION #8: I filed a bankruptcy before, so I can’t file again. Incorrect. The law prohibits getting a chapter 7 discharge within 8 years of a previous chapter 7 discharge. But, even within the eight-year time period, a chapter 13 bankruptcy may be filed. Don’t hesitate to call me if you have filed a previous bankruptcy. You still have many options.

MISCONCEPTION #9: I am not allowed to have a checking account if I file bankruptcy. Incorrect. No rule stops you from keeping or opening a bank account. Most people keep the account that they had and continue to use it without interruption. In other cases, it may be smart to close an existing account prior to filing bankruptcy.

MISCONCEPTION #10: Taxes cannot be eliminated in bankruptcy. Wrong. Many taxes are eliminated in bankruptcy. There are several complex rules that apply. Eliminating taxes depends on how old the taxes are, when the returns were filed, and whether the taxes have been assessed, and the type of taxes."

IS IT A LOAN, A GIFT OR WHAT?

When two parties are not related, there is a longstanding principle that the presumption arising from the delivery of a check is that it was tendered in payment of a debt and not as a loan. (Leask v. Hoaoland, 205 NY 171 [1912]; Tn Re Effross, 43 ÄDS39 [1st Dept 1973]), In the absence of other evidence, a loan is not presumed from the making of a check, there must be evidence that the payment was intended as a loan. (Marks v. Kellogg, 170 AD 468 [1st Dept 1915]). Care must be given in considering evidence to overcome the presumption that the check tendered represented some debt or obligation owed. (Kofihler v. Adler., 78 NY 287 [1879]. So what happens when two parties enter into an oral arrangement for a business and one transfers a check to the other party as some sort of contribution to the business? The deal sours and the only written evidence available is a cancelled check? Was the delivery of a check a loan, payment of a debt, or a contribution of a business interest? Was it a gift? That was a matter recently discussed with me and it emphasizes the old saying that an oral agreement is not worth the paper it is written on. Before you enter into any transaction, with family, friends, or business acquaintances.....consult with an attorney.

UNEMPLOYMENT INSURANCE - BE PREPARED

This came up in a recent matter: while you are employed, keep copies of everything, especially an employee handbook if your employer has one. Why? If your employment is later terminated and your employer is objecting to your claim for unemployment benefits, one of the grounds they may claim is misconduct and failure to follow company policy. If the Department of Labor sides with your employer and you request a hearing on the issue, it is very likely that the employee handbook will be introduced by the employer as evidence of company policy. Your lawyer and/or representative will want to review this beforehand; otherwise, your hearing may be extended into more than one day as your lawyer and/or representative should want to review it carefully.

MORTGAGE FORCLOSURE

I have consulted with many people who are unhappy with the Making Home Affordable program. The Making Home Affordable Program is supposed to work this way: in return for billions of dollars in taxpayer bailout money, banks would offer loans that would reduce troubled borrowers' monthly mortgage payments to 31 percent of their income. To qualify, a homeowner must have an income and must live in the house, and that house can't be worth more than $730,000. But there are lots of problems:
1. The program is not mandatory.
2. Bank staff and servicing staff is low.
3. The homeowners who most need the program are the riskiest bets.
4. Banks don't always have the final say. Many of these mortgages are held by private investors, and the bank simply acts as a middleman. If investors think they can make more money by foreclosing than modifying the loan, experts say the bank is powerless to override that decision.
5. Banks who do participate and break the program's rules have not been penalized.
If you are seeking this type of relief, don't attempt it on your own. Contact the Homeowner’s HOPE™ Hotline: (888) 995-HOPE. In earlier blogs, I've also pointed out where Nassau County residents can also get assistance.

MORTGAGE FORCLOSURE

Yesterday, I had the honor of being one of the attorneys available for consultation at the free mortgage foreclosure clinic sponsored by the Nassau County Bar Association. It appears from the people I consulted with that it is not just the economy and job loss that leaves many homeowners in a position where they may face foreclosure, but excessive financing and refinancing during the "boom" years and now the mortgage is higher than the home value. In any event, if you are served in any fashion with foreclosure papers, even if it was served improperly, go to a lawyer right away. DO NOT DEFAULT EVEN IF IT MEANS ANSWERING ON YOUR OWN UNTIL YOU GET A LAWYER. Contact Nassau/Suffolk Legal Services or get a referral from the Nassau County Bar Association.

MORTGAGE FORCLOSURE - OCT. 19

Just as a follow up to today's Mortgage Foreclosure clinic, Nassau County residents in need of homeowner assistance may contact the following services. All services are provided free of charge by the County.

Nassau County Homeownership Foreclosure Hotline
Home Equity Conversion Mortgage Counseling, Loss Mitigation, Mortgage Delinquency & Default Resolution Counseling
(516) 571-HOME (4663)

Nassau County Homeownership Center HUD Certified Housing Counseling Agency
Fair Housing Assistance, Home Improvement & Rehabilitation Counseling, Homebuyer Education, Mobility & Relocation Counseling, Money Debt Management, Postpurchase Counseling, Predatory Lending, Prepurchase Counseling, Renters Assistance and Services for Homeless
(516) 572-1903

MORTGAGE FORCLOSURE - OCT. 19

From the NCBA website: "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 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."

I will be volunteering to take part in the October 19th Mortgage Foreclosure Consultation Clinic. It start at 4:00 p.m. So far, about 31 homeowners have registered for consultations. There will be six clinic-experienced attorneys on hand plus six new volunteers (I am one of that six) who will be observing and learning clinic procedures.

INSURANCE

Recently, Insurance Law Section 3420 was amended making a dramatic change to an insurer's ability to disclaim coverage based upon late notice. Prior there to, whether it was under a policy governing your home, boat, auto, etc.,notice must be given to the insurance carrier within the time limits of the policy. That law has changed. This is from the NYS Insurance Department:

"OGC Op. No. 09-06-08

The Office of General Counsel issued the following opinion on June 23, 20009 representing the position on the New York State Insurance Department.

Re: Interpreting the Amendments to Insurance Law § 3420

Question Presented:

1. Do the Chapter 388 amendments to Insurance Law § 3420, which apply to any “liability policy issued or delivered in this state,” include policies issued in New York but delivered outside of the state?

2. Does the prejudice rule set forth in Insurance Law § 3420 only apply to liability policies?

3. Does Insurance Law § 3420 apply to claims-made policies?1

4. May a third party bring a direct cause of action against a New York insurer in a foreign jurisdiction subsequent to a denial for late notice if the policy was delivered in a foreign jurisdiction that requires a judgment against, or settlement with, the insured prior to the initiation of such cause of action?

Conclusion:

1. Yes. The term “issued or delivered in this state” includes policies issued in New York but delivered outside of the state.

2. Insurance Law § 3420 sets forth minimum requirements for liability policies, which includes the prejudice rule. However, insurers may provide more liberal provisions in their policies to benefit their insureds, and thus may include a prejudice rule in other kinds of policies, too.

3. Yes, Insurance Law § 3420 applies to claims-made policies. However, Chapter 388 recognizes the distinctive nature of claims-made policies and does not allow for duplicate claims under multiple policy periods, or a late claim under a prior policy period.

4. No. Insurance Law § 3104(b) allows a New York insurer to include in any policy of insurance issued for delivery in another jurisdiction any provision required by the laws of such other jurisdiction applicable to such policy.

Facts:

The inquiry is general in nature, without reference to particular facts.

Analysis:

Chapter 388 of the Laws of 2008 amended Insurance Law § 3420 to establish a new “prejudice” standard2 for liability policies that an insurer must satisfy before it may deny a late claim. Chapter 388 also requires insurers under certain circumstances to advise a claimant as to whether a liability insurance policy is in effect. Further, Chapter 388 amended N.Y. Civil Practice Laws and Rules (“CPLR”) § 3001 (McKinney Supp. 2009) to specifically authorize a party who has brought a claim for personal injury or wrongful death against another party to maintain a declaratory judgment action in New York against the insurer of such other party, as provided in Insurance Law § 3420(a)(6).

1. Policies Delivered Out-of-State.

The first query asks whether Chapter 388 applies to policies delivered outside of New York. Section 8 of Chapter 388, which is the effective date provision, is relevant to the inquiry. That section reads as follows:

This act shall take effect on the one hundred eightieth day after it shall have become a law, and shall apply to policies issued or delivered in this state on or after such date and to any action maintained under such a policy (emphasis added);

Section 8 is consistent with other provisions of Insurance Law § 3420, which otherwise employ the language “issued or delivered in this state.” See Insurance Law § 3420 (a), (e), and (f). While that term is not defined in Insurance Law § 3420, it appears in other sections of the Insurance Law, like Insurance Law §§ 3425, 3426, and 3427.

The legislative history of Insurance Law § 3201, as set forth in a discussion of Insurance Law § 155 (a predecessor provision to Insurance Law § 3201) in an internal opinion from the Department’s Office of General Counsel (“O.G.C.”) dated October 15, 1959, indicates that the proper interpretation of the term “issued or delivered in this state” refers both to a policy issued for delivery in New York, and a policy issued for delivery outside of New York. The internal opinion states that 1940 amendments to Insurance Law § 155 changed the language, with respect to life insurance policies, from “issued or delivered in this state” to “delivered or issued for delivery in this state.” The effect of the amendments thus put an end to a requirement that policies issued by domestic life insurers contain certain standard provisions or require approval by the Superintendent. The Bar of the City of New York Committee on State Legislation (“the Committee”), in commenting upon the objective of the 1940 amendment to Insurance Law § 155, stated:

“In amending the language to cover such a situation [,] policies to be delivered or issued for delivery outside of the state are excluded...” Assembly Print 1145, Int. 529 (New York 1939); Senate Print 2640, Int. 1854 (New York 1939)

The substitution of “delivered or issued for delivery in this state” for “issued or delivered in this state” in the 1940 amendment created a disparity in treatment between policies issued and delivered in New York, and those that are issued in New York but delivered outside of the State. However, statutes, such as Insurance Law § 3420, which continue to read “issued or delivered in this state,” apply to both policies issued within New York for delivery in New York, as well as policies issued in New York for delivery outside of New York.

2. Prejudice Rule in Non-Liability Policies.

The second query asks whether the prejudice rule set forth in Insurance Law § 3420, which prevents the invalidation of a claim due to untimely notice by the insured, injured person or any other claimant unless the failure to provide timely notice has prejudiced the insurer, only applies to liability policies. The inquirer asserts that in some states, the prejudice rule is not limited to liability policies, and asks whether non-liability policies in New York may contain a prejudice rule. Insurance Law § 3420 is limited to establishing minimum requirements for liability policies. That statute, however, does not preclude an insurer from adding a similar prejudice provision in non-liability policies. Nothing precludes an insurer from voluntarily including a prejudice rule in non-liability policies.

3. Claims-Made Policies.

The third query asks whether Insurance Law § 3420 applies to claims-made policies. The inquirer asserts that Insurance Law § 3420 only requires an insurer to prove prejudice in order to deny coverage for late notice with respect to occurrence policies, while other states also apply this provision to claims-made policies. Insurance Law § 3420 applies to both occurrence and claims-made policies. A claims-made policy provides that the claim shall be made during the policy period, any renewal thereof, or any extended reporting period. However, Insurance Law § 3420(a)(5) recognizes the distinctive nature of claims-made policies so as to prevent duplicate claims over multiple policy periods, or a late claim under a prior policy period. That statute provides that a claims-made policy may provide that the claim shall be made during the policy period governing the time during which the event occurred; the renewal of such policy; and any extended reporting period under such policy. See Circular Letter No. 26 (2008).

4. Provisions Required by Other Jurisdiction’s Laws.

The fourth query asks whether a third party may bring a direct cause of action against a New York insurer in a foreign jurisdiction subsequent to a denial for late notice if the policy was delivered in a foreign jurisdiction that requires a judgment against, or settlement with, the insured prior to the initiation of such cause of action. The inquirer asserts that Insurance Law § 3420 allows a cause of action to be brought directly against the insurer if a claim is denied for late notice, but that in other states, a third party may not bring such a cause of action against the insurer unless and until it first secures a judgment against, or settlement with, an insured. However, if a jurisdiction outside New York prohibits a direct action, Insurance Law § 3104(b)3 expressly permits a domestic insurer to include in any insurance policy or annuity contract issued for delivery in that jurisdiction and governed by that jurisdiction’s law any provisions required by the laws of that jurisdiction applicable to the insurance policy or annuity contract.

For further information you may contact Associate Counsel Alexander Tisch at the New York City Office.

___________________________________________________________________________________________________________

1 Section 73.0(a) of N.Y. Comp. Codes R. & Regs. (“NYCRR”), tit. 11, Part 73 (Reg. 121) explains the distinction between “claims-made” and “occurrence” policies as follows:

Traditionally, most liability insurance policies protect against injury or damage that occurs during the policy period. Such “occurrence” policies generally provide coverage, even though an actual claim is made or suit is filed, arising from that occurrence, subsequent to the policy period. In contrast, “claims-made” policies generally provide coverage only when a claim is made during the policy period with regard to injury or damage that has taken place during that time.

2 The “prejudice” standard set forth in Insurance Law § 3420(a)(5) provides that a claim by an insured, injured person or any other claimant shall not be invalidated because of a failure to give timely required notice, unless the failure to provide timely notice has prejudiced the insurer.

3 Insurance Law § 3104(b) provides that “[a]ny domestic insurer may include in any policy of insurance or contract of annuity issued for delivery in another jurisdiction and governed by the laws thereof, any provision required by the laws of such other jurisdiction applicable to such policy or contract.”"

MORTGAGE FORCLOSURE

Home owners in distress can only hope for this, from the Texas Law Firm of Kraft & Associates: "According to an article in the Journal of the American Bankruptcy Institute, the failure by mortgage companies to pursue voluntary modifications of mortgages may renew the push to allow judges to modify mortgages within bankruptcy cases. Since the “Home Affordable Mortgage Program” (HAMP) went into effect in March 2009, only about 360,000 homeowners have seen their mortgage payments lowered by their mortgage companies. The goal set by the Obama administration was to have 500,000 mortgages modified by November 1st, and it is estimated that 2.7 million homeowners are eligible for modifications under the program. In June, HAMP officials began conducting rigorous reviews of mortgage servicers, and have now started a “second look” program, under which servicers’ decisions to approve or deny HAMP modifications will be scrutinized. Compliance officers are also analyzing HAMP-modified loans to track error rates with servicers. Government officials have tried to stimulate the rate of modifications several times. The Treasury Department has set a goal of 4 million mortgage modifications by 2012, but estimates indicate that only about half that number will actually be modified. Barney Frank (D-Mass.), chairman of the House Financial Services Committee, said, “The best lobbyists we have for getting bankruptcy legislation passed are the servicers who are not doing a very good job of getting mortgages modified.” He may insert a cramdown provision into legislation that would overhaul the financial system, which would allow bankruptcy judges to lower the balances on mortgages to the market value of the property and set new interest rates. That bill will become a top priority in early 2010."

MORTGAGE FORCLOSURE

CONTACT YOUR LENDER OR LOAN SERVICER IMMEDIATELY! It is crucial that you contact your lender or loan servicer as soon as you realize that you are unable to make a payment. This is a crucial first step in addressing your situation and identifying possible solutions. It is very important that you respond to mail and phone calls from your lender. If your lender does not hear from you, they are more likely to start legal action leading to foreclosure. Try to get a live person and a direct number. Look at your last mortgage statement to find out if your mortgage is self-servicing or contracted out to a servicer. The workout department and/or the servicer have the decision-making authority in any workout and some lenders and servicers may be subject to restrictions on how or what kind of workout they may enter into. Unfortunately, in this economy, the workout departments for lenders and servicers are short staffed. Most times it can be at least 90 days for any decision to be made and some workout departments will not even consider your calls unless you're in arrears, sometimes as much as two months. If you are considering a workout, it takes time. And the decision may not be in your favor.

MORTGAGE FORCLOSURE

The Obama Administration has introduced Making Home Affordable, a plan to stabilize our housing market and help up to 7 to 9 million Americans reduce their monthly mortgage payments to more affordable levels. The Home Affordable Refinance Program gives up to 4 to 5 million homeowners with loans owned or guaranteed by Fannie Mae or Freddie Mac an opportunity to refinance into more affordable monthly payments. The Home Affordable Modification Program commits $75 billion to keep up to 3 to 4 million Americans in their homes by preventing avoidable foreclosures. For more information, and to see if you are eligible (there are strict requirements), click on the link to the title.

MORE ON HEATING - FOR RENTERS

This is from tenant.net and a lot of it applies to NYC apartments only but some of the suggestions, etc. will also apply to Nassau renters so here it is:

"Court Actions

Tenants may withhold rent if they are denied heat and hot water and expect to be sued by their landlord for non-payment in Housing Court. In answering, tenants should claim landlord's breach of the Warranty of Habitability and cite the specific denial of services as a defense. A court ordered inspection to confirm tenants’ defense should be requested, if an inspection is still appropriate. Tenants should also enter a counterclaim for rent abatements based on reduced services. As mentioned above, documentation of times, dates, and relevant temperatures on those dates will play a critical role as evidence to substantiate tenant claims.

Tenants could also sue the landlord for the necessary repairs or restoration of services by filing an Housing Part Action (HP) in Housing Court. Favorable results of such an action might include court ordered repairs, rent abatements, and if there is further landlord non-compliance, fines, contempt proceedings and occasionally, jail sentences. The HP Action is often the fastest and most effective procedure that tenants may employ for getting landlords to comply with the housing codes and is highly recommended.

Complaints to the DHCR

Rent stabilized or rent controlled tenants in addition to the actions taken above, may, at the same time, file either form HHW-1 (individual tenants) or form RA-84 (building wide) with the New York State Division of Housing and Community Renewal (DHCR). The DHCR is required to order an inspection of the subject building and upon confirmation of the tenant complaint may reduce the existing rent and freeze any further increases. Rents remain frozen until services are restored. The landlord must make a written request for reinstatement of rents. Tenants can challenge the request if, in fact, the landlords claim of restoration of services is not accurate. For a more thorough discussion, refer to CTRC fact sheet, Rent Reduction for Lack of Services.

Note: Most tenant activists believe filing a complaint with DHCR is futile at best. While the avenue exists, DHCR is essentially a landlord-protection racket and more likely than not, not the quickest solution for heat-related problems.

Tenant Organizing

Because heat-related problems can become immediately hazardous to health and safety, the value of an organized tenancy cannot be overemphasized. The process of getting services restored may involve complex and extended legal negotiations with the landlord, city agencies and/or the courts. Such efforts are best carried out by a well organized tenant group. Tenants not able or not prepared to develop a self-organized group should seek the help and advice of a legal services provider, community housing organization, or a competent tenant attorney.

PRACTICAL TIPS

From a practical standpoint, a heat complaint should trigger an inspection from HPD. Of course, that is the whole point. But also be aware that while inspectors will be quick to tell you they cannot report violations on conditions other than heat, they are under instructions to look for certain specific things relating to fire safety and egress -- and you should be aware of this.

They check for:

1. That you have a second means of egress, often (but not always) an unencumbered fire escape, not blocked by anything on the fire escape, plants, furniture on the fire escape, air conditioners protruding and blocking fire escapes, etc., and only FDNY-approved window gates (the type that aren't locked with a padlock).

2. That you don't have a double-cylinder lock on your front door. These locks require a key on both sides of the door. In a fire you might be locked-in while looking for a key in the dark.

3. That you have an operating smoke alarm.

These are legal requirements and good ideas. Anyone who has even been in a fire and who needed to quickly escape from a building will tell you this. So we urge you to make sure you're in compliance whether or not you need to make a heat-related complaint. But if an inspector reports any of these as a violation, the violation will go to your landlord who, in many cases, will try to blame you and take you to court. That's a headache you don't need. On the other hand, if the landlord caused any of these conditions, then you can/should complain about them.

HPD inspectors should also check for a) window guards and b) lead- paint hazards if you have young children. We're not sure if they always do this.

The above telephone numbers (311 or 212-NEW-YORK) should also be good for bad conditions other than heat, but since the budget cutbacks of the early 1990's, it's been virtually impossible to get inspections on other conditions unless ordered by Housing Court.

When an inspector comes, make sure you get his name and badge number and have him show his badge. You should be able to get copies of the resulting violations later from HPD, although there is often a lag time between the inspection and when it appears on their computer. And even if an inspector seems to be truly interested in your plight, be watchful that they don't have 'private' conversations with the super of landlord. It's been known to happen that some inspectors are 'persuaded' to not write-up violations. One way is to document his/her visit with a neighbor witness, photos of the condition (for other than heat), a heat sheet documenting the inside and outside temperature. And be sure the inspector knows you will follow-up with HPD on getting a copy of the violation. Just ask the inspector how to get a copy - they all know.


Don’t Freeze - Organize!
Met Council on Housing

The law requires your landlord provide heat and hot water at the following levels from October 1 through May 31:

From 6 am to 10 pm: If the outside temperature falls below 55 degrees, the inside temperature must be at least 68 degrees everywhere in your apartment.

From 10 pm to 6 am: If the outside temperature falls below 40 degrees, the inside temperature must be at least 55 degrees everywhere in your apartment.

Hot water at a minimum 120 degrees at the tap must be provided 24 hours a day, year round.

If your landlord does not maintain those minimum temperatures, you should:

Start an HP action in Housing Court. Ask for a court-ordered inspection and an Order to Correct.
Call the New York City Central Complaints Bureau at 311 immediately to record the landlord’s violation. Call repeatedly. An inspector should eventually come, although sometimes they don’t.
Get other tenants in your building to call Central Complaint. Everybody should call repeatedly, at least once every day the condition is not corrected.
Buy a good indoor/outdoor thermometer and keep a chart of the exact dates, times, and temperature readings, inside and out, so long as the condition is not corrected. The chart is your evidence
Call the New York State Division of Housing and Community Renewal at (718) 739-6400 and ask them to send you their Heat and Hot Water complaint form. Get as many other apartments as possible in your building to sign on, demanding an order restoring heat and hot water, and a reduction and freeze (pardon the expression!) in all the rents.
You’ll need a strong tenant association to force the landlord to provide heat and hot water. Write and call the landlord and demand repairs or fuel.

Prepare to go on rent strike but get legal advice first.

The Heat Laws Also Provide For:

The city’s Emergency Repair Department to supply your heat if the landlord does not. (Try waiting for this one!)
$250 a day fine to the landlord for every day of violation. (But the Housing Court rarely imposes these fines, let alone collects them.)
$1,000 fine to the landlord if an automatic control device is put on the boiler to keep the temperature below the lawful minimum.
If your boilers fuel tank is empty, tenants have the right to buy their own fuel after 24 hours of no heat and no response from the landlord. But this provision does not apply if the boiler is broken and needs both repairs and fuel.

CAUTION! Protect your money! If you decide to buy fuel, you must follow special lawful procedures very carefully. You should get help and advice from a tenant organizer.

Because the heat and hot water laws are in the law books does not mean they are enforced by government. Don’t freeze to death waiting for the city or state to act. Organize!"

HEAT PROGRAMS FOR OWNERS AND RENTERS

It started to get cold so let's just discuss options right now for heating costs:

HOME ENERGY ASSISTANCE PROGRAM (HEAP)

This program provides a once-a-year benefit to low income homeowners and renters to help pay for fuel or utility costs. Persons age 60 and over, and disabled and SSI recipients of all ages, can apply by mail. For information on income eligibility levels and application procedure, contact:

Nassau County Department of Senior Citizen Affairs
HEAP Program
60 Charles Lindbergh Boulevard
Uniondale, NY 11553-3653
227-7386

WEATHERIZATION REFERRAL AND PACKAGING PROGRAM (WRAP)

Low income eligible seniors are assisted in obtaining weatherization services through local providers. These services include, but are not limited to, boiler repair, replacement of storm windows and doors, caulking and weatherstripping, etc. An individual plan is developed to include the identification of needs and resources and, thereafter, to provide the coordination of services needed. For information, call:

Nassau County Department of Senior Citizen Affairs -- 227-7386.

RESIDENTIAL ENERGY AFFORDABILITY PARTNERSHIP (REAP)

REAP is a program for Long Island Power Authority (LIPA) customers that can help limited income households better control their energy use and thus save money on electric bills. If eligible, a REAP team will visit the home and provide information on practical ways to reduce energy costs. In addition, they may install certain energy saving devices at no cost to the homeowner. Contact

Nassau County Department of Senior Citizen Affairs WRAP Program -- 227-7386

LIPA -- 1-800-263-6786 www.lipower.org/cei/reap.html

PROJECT WARMTH

Project Warmth is a community-based partnership that provides financial assistance to enable eligible families to pay their heating bills. This program is administered by Long Island’s United Way. One-time grants are awarded from October 1 to March 31. Contact

Project Warmth – Information Line 1-631-940-3757

Also, from the Nassau County Health Department:

"Heating Regulations
Who is responsible for the heat in my dwelling?

The Nassau County Health Department does not regulate owner occupied dwellings like owner occupied single-family homes, condominiums, and co-op apartments (problems need to be addressed with the building managers, owners boards, or through legal counsel). For rental dwellings, heat and utilities in single-family homes are generally the responsibility of the occupants. In multi-unit buildings, unless other agreements have been reached, the owner/landlord is generally responsible for the heat. In all cases where there is a shared or common service that is not metered or billed separately for each dwelling unit, the owner/landlord is responsible for providing these utilities. The owner/landlord is also responsible for assuring that the delivery systems for heat and hot water are functioning properly in all cases.

Does the Health Department regulate heat in offices, commercial, or industrial areas?

No, Nassau County Health Department only regulates heat for rental residential dwellings. Complaints concerning the workplace should be directed to the New York State Labor Department at (516) 334-3344

When is it required for heat to be provided?

In Nassau County, the Nassau County Public Health Ordinance requires that heat be provided from October 1st through May 31st the following year, any time the outside temperature drops below 55 F. The required minimum temperature is 65 F between 10PM and 6 AM (overnight) and 68 F between 6AM and 10PM (during the day).

Does the Nassau County Health Department regulate all areas of Nassau County for heat?

No. Several incorporated villages, and the two cities (Glen Cove and Long Beach) have regulations that are more restrictive and enforce their own heating regulations. The Villages who regulate heating requirements themselves are: Cedarhurst, Freeport, Great Neck Plaza, Great Neck, Hempstead, Lynbrook, and Rockville Centre. If you live in any of these villages or cities, call the municipal offices to find out about the heating regulations that apply to your home and the phone numbers to call to report any problem.

Is more information available?

For more information, please contact your local municipality:

City of Glen Cove / (516) 676-2000
City of Long Beach / (516) 431-1000
Nassau County Village Officials Association / (516) 437-1455

If Nassau County residents have additional questions or concerns regarding heat in their dwelling, they can call the NC Department of Health - Community Sanitation Program (516-227-9715)."

MORTGAGE FORCLOSURE

So if you borrowed money on your home, and are involved in a short sale, load modification, extended payment, deed in lieu of foreclosure, etc., tax implications must also be considered. This is from the IRS web site: "If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. When you borrowed the money you were not required to include the loan proceeds in income because you had an obligation to repay the lender. When that obligation is subsequently forgiven, the amount you received as loan proceeds is normally reportable as income because you no longer have an obligation to repay the lender. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt. Here’s a very simplified example. You borrow $10,000 and default on the loan after paying back $2,000. If the lender is unable to collect the remaining debt from you, there is a cancellation of debt of $8,000, which generally is taxable income to you. Is Cancellation of Debt income always taxable? Not always. There are some exceptions. The most common situations when cancellation of debt income is not taxable involve: Qualified principal residence indebtedness: This is the exception created by the Mortgage Debt Relief Act of 2007 and applies to most homeowners. Bankruptcy: Debts discharged through bankruptcy are not considered taxable income. Insolvency: If you are insolvent when the debt is cancelled, some or all of the cancelled debt may not be taxable to you. You are insolvent when your total debts are more than the fair market value of your total assets. Certain farm debts: If you incurred the debt directly in operation of a farm, more than half your income from the prior three years was from farming, and the loan was owed to a person or agency regularly engaged in lending, your cancelled debt is generally not considered taxable income. Non-recourse loans: A non-recourse loan is a loan for which the lender’s only remedy in case of default is to repossess the property being financed or used as collateral. That is, the lender cannot pursue you personally in case of default. Forgiveness of a non-recourse loan resulting from a foreclosure does not result in cancellation of debt income. However, it may result in other tax consequences. These exceptions are discussed in detail in Publication 4681."

MORTGAGE FORCLOSURE

If you are considering a real estate short sale of your home, you should be aware that you may receive a form 1099-C for the amount of the lender's losses. This is considered loan forgiveness in the eyes of the IRS. If you have other assets such as saving and you are not insolvent, you may end up being responsible to pay ordinary taxes on the amount of the 1099-C. If you settle a debt with a creditor for less than the full amount owed, you may be required to report this forgiven debt as regular income, with certain important exceptions. The forgiven debts include money owed after foreclosure or property repossession or credit accounts that you don't pay. There are exceptions noted below. If a lender forgives or writes off $600 or more of a debt's principal (the amount not including interest or fees) must send you and the IRS a Form 1099-C at the end of the year. When you file your tax return for the tax year in which your debt was written off, the IRS will require that you report the amount on the form as income. While you may not have received this form from the creditor, the creditor may have submitted one to the IRS anyway. If you don’t list the income on your tax return and the IRS has the information of the transaction on file, you could get a tax bill or, worse, an audit notice. This could end up costing you more than just the original tax bill. There are several exceptions stated in the Internal Revenue Code. For example, you do not have to report the income on your tax return if the write off of the debt is intended as a gift, you discharge the debt in bankruptcy, or you were insolvent before the creditor agreed to settle or write off the debt. Also The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief. You should consult a qualified tax and legal counsel to see if these circumstances apply.

MORTGAGE FORCLOSURE

What is a short sale? You may hear the term "short sale" by a real estate agent in different fashions, i.e. this is short sale because the seller is accepting less than the asking price, this is a short sale because the seller is accepting less than the fair market value, etc. But for terms of mortgage foreclosure, a short sale is when the seller and the lender agree for the seller to sell the house, either to the lender or a third party, and the lender will accept less than amount due on the mortgage. The lender usually forgives the difference and considers the debt repaid but there is no guarantee that a lender who accepts a short sale will not legally pursue a borrower for the difference between the amount owed and the amount paid. More on this in later blogs.

UNEMPLOYMENT INSURANCE BENEFITS - MISCONDUCT

This came up the other day with a client so I am posting this again. Naturally, you can be fired by your employer for misconduct. But the level of "misconduct" that the employer claims you were engaged in may be different than the level of "misconduct" that would deny you unemployment insurance benefits. You must look at the two issues as being two different issues. When you have been discharged, and seek unemployment benefits, only to be denied because your employer alleged misconduct: remember to request a hearing. The hearing is not whether or not you should get your job back but whether you are entitled to job benefits. The allegations of your employer may be disputed by you but again, the standard of misconduct that you are held to for benefits can be different than the standards utilized by your former employer. Under Section 593.3, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. (See Field Memo 2-99 for further detail. The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion.

On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness.

MORTGAGE FORCLOSURE

I recently attended a seminar on mortgage foreclosure workouts and will be discussing same in upcoming blogs. One thing of note - the typical foreclosure action in New York State, from service of papers to foreclosure sale, takes around 500 days. In Nassau County, around two years. In upstate New York, the process is quicker. Most foreclosure actions, at the moment, are in Queens, Nassau and Suffolk.

DISPUTES WITH SCHOOL BOARDS

Recently, I received an adverse decision in an appeal to the New York State Education Department in which the Interim Commissioner, stated in dictum, that the federal guidelines contained in ERIC, the Education Resources Information Center of the United States Department of Education, was not binding on New York State School Boards. This is not true and, obviously, must be subject to an appeal if possible. Here is a quote from Identifying and Implementing Educational Practices Supported By Rigorous Evidence: A User Friendly Guide U.S. Department of Education
Institute of Education Sciences National Center for Education Evaluation and Regional Assistance, December 2003, Prepared for the Institute of Education Sciences Grover J. Whitehurst, Director :
"The field of K-12 education contains a vast array of educational interventions - such as reading and math curricula, schoolwide reform programs, after-school programs, and new educational technologies - that claim to be able to improve educational outcomes and, in many cases, to be supported by evidence. This evidence often consists of poorly-designed and/or advocacy-driven studies. State and local education officials and educators must sort through a myriad of such claims to decide which interventions merit consideration for their schools and classrooms. Many of these practitioners have seen interventions, introduced with great fanfare as being able to produce dramatic gains, come and go over the years, yielding little in the way of positive and lasting change - a perception confirmed by the flat achievement results over the past 30 years in the National Assessment of Educational Progress long-term trend.
The federal No Child Left Behind Act of 2001, and many federal K-12 grant programs, call on educational practitioners to use "scientifically-based research" to guide their decisions about which interventions to implement. As discussed below, we believe this approach can produce major advances in the effectiveness of American education. Yet many practitioners have not been given the tools to distinguish interventions supported by scientifically-rigorous evidence from those which are not. This Guide is intended to serve as a user-friendly resource that the education practitioner can use to identify and implement evidence-based interventions, so as to improve educational and life outcomes for the children they serve."

MORTGAGE FORCLOSURE

Click on the title above to view an excellent video presentation from the New York State Bar Association offering practical tips and advice for homeowners facing mortgage foreclosure.

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

A word of caution regarding stipulations. In Housing Court, it can be a mad rush of many matters to be heard that day: the lawyers are in a rush, the landlords, the tenants, the court, the clerks. In most cases, the matter is settled through a stipulation. But make sure it is written up carefully and that you, either the landlord or the tenant, and their counsel, make the terms clear to everyone. The courts have held that a stipulation is a contract and that the law favors stipulations. Unless a stipulation is invalid due to fraud, collusion, mistake, accident, duress, or unconscionability, or is contrary to public policy or ambiguity suggesting the words did not represent the agreement, parties will not be relieved from the consequences.

UNEMPLOYMENT INSURANCE BENEFITS - VOLUNTARY SEPARATION

Employee and employer have argument. Employee asks "Do you want me to give my two weeks notice?" and employer says "You can leave now" and pays employee salary for that day. Employee is denied benefits by Department of Labor on the grounds of voluntary separation. Hearing is held and I argue that employee's statement was not a resignation. A decision is reached in favor of employee but on the ground that the determining factor was that the employer paid only up until that day and did not give "two weeks" pay. So the voluntary separation, in effect, became a termination because the two week notice period was shortened by the employer. Now, what if the employer gave the employee two weeks notice and employee said "No, just give me my money for today, I'm leaving".

NEW CONSUMER PROTECTION BILL

An important consumer protection bill, authored by Senator Brian X. Foley (D – Blue Point), became law following signing by Gov. Paterson. The legislation (S. 3331B) cracks down on auto warranty scams that have been widely reported throughout New York State. For months, New Yorkers have been the targets of telemarketers selling bogus auto warranties. The legislation prevents the deceptive solicitation of vehicle warranty policies. It makes it illegal for a person or business to make misleading solicitations for a motor-vehicle warranty where the solicitor erroneously implies there is a current warranty relationship. The bill was sponsored in the Assembly by Assemblyman Ken Zebrowski (D – Rockland). The legislation passed unanimously in both the Senate and Assembly. It takes effect immediately.

UNEMPLOYMENT INSURANCE BENEFITS - UNIONS & WILLFUL MISREPRESENTATIONS & MISCONDUCT

Here's a concern for union employees. You are charged by your employer for misconduct and your union negotiates a settlement wherein you resign and keep your pension and other benefits. This may negate your eligibility for unemployment insurance on the grounds that you voluntarily resigned. Perhaps if you feel your union is not adequately representing you, you should consult with an attorney before you sign the union negotiated settlement.