NEW YORK - CHANGE IN MATRIMONIAL AUTOMATIC ORDERS

I was recently advised that the automatic orders Court rule was amended, effective January 30, 2013:

http://docs.dos.ny.gov/info/register/2013/jan30/pdf/court.pdf

AMENDMENT OF RULE

Uniform Civil Rules for the Supreme and County Courts

Pursuant to the authority vested in me, and upon consultation with

and approval by the Administrative Board of the Courts, I hereby

amend, effective immediately, section 202.16a of the Uniform Civil

Rules for the Supreme and County Courts, relating to automatic orders

in matrimonial actions, to read as follows:

==================

Section 202.16a Matrimonial Actions; Automatic Orders

1. (a) Applicability. This section shall be applicable to all matrimonial

actions and proceedings in the Supreme Court authorized by section

236, Part B, Section (2) of the Domestic Relations Law.

(b) Service. The plaintiff in a matrimonial action shall cause to be

served upon the defendant, simultaneous with the service of the summons,

a copy of the automatic orders set forth in this section in a notice

that substantially conforms to the notice contained in Appendix F.

The notice shall state legibly on its face that automatic orders have

been entered against the parties named in the summons or in the summons

and complaint pursuant to this rule, and that failure to comply

with these orders may be deemed a contempt of court.

The automatic orders shall be binding upon the plaintiff immediately upon riling of

the summons, or summons and complaint, and upon the defendant immediately

upon service of the automatic orders with the summons.

These orders shall remain in full force and effect during the pendency

of the action unless terminated, modified or amended by further order

of the court or upon written agreement between the parties.

(c) Automatic Orders.

[The automatic orders served with the summons shall provide as

follows;]

Upon service of the summons in every matrimonial action, it is

hereby ordered that:

(1) [n]

Neither party shall sell, transfer, encumber, conceal, assign,

remove or in any way dispose of, without the consent of the

other party in writing, or by order of the court, any property (including,

but not limited to, real estate, personal property, cash accounts,

stocks, mutual funds, bank accounts, cars and boats) individually or

jointly held by the parties, except in the usual course of business, for

customary and usual household expenses or for reasonable attorney's

fees in connection with this action.

(2) [n]

Neither party shall transfer, encumber, assign, remove,

withdraw or in any way dispose of any tax deferred funds, stocks or

other assets held in any individual retirement accounts, 40IK accounts,

profit sharing plans, Keogh accounts, or any other pension or retirement

account, and the parties shall further refrain from applying for or

requesting the payment of retirement benefits or annuity payments of

any kind, without the consent of the other party in writing, or upon

further order of the court, except that any party who is already in pay

status may continue to receive such payments thereunder.

(3) [n]

Neither party shall incur unreasonable debts hereafter,

including but not limited to further borrowing against any credit line

secured by the family residence, further encumbrancing any assets, or

unreasonably using credit cards or cash advances against credit cards,

except in the usual course of business or for customary or usual

household expenses, or for reasonable attorney's fees in connection

with this action.

(4) [n]

Neither party shall cause the other party or the children of

the marriage to be removed from any existing medical, hospital and

dental insurance coverage, and each party shall maintain the existing

medical, hospital and dental insurance coverage in full force and effect.

(5) [n]

Neither party shall change the beneficiaries of any existing

life insurance policies, and each party shall maintain the existing life

insurance, automobile insurance, homeowners and renters insurance

policies in full force and effect.

(6) These automatic orders shall remain in full force and effect

during the pendency of the action unless terminated, modified or

amended by further order of the court or upon written agreement between

the parties.

(7) The failure to obey these automatic orders may be deemed a

contempt of court.

NEW YORK STATE UNEMPLOYMENT INSURANCE - APPEAL BOARD DECISIONS

To those attorneys who practice in this area and represent Claimants only, I would like to hear your comments as to what you feel the "tone" of the Appeal Board has been in the past year - has it been "pro Claimant", "pro Employer" or "Fair & Even Across the Board"

NEW YORK UNEMPLOYMENT INSURANCE - OUT OF COUNTRY

From the DOL website:

"Q: What if I leave the area?

A: If you leave your normal labor market to travel to another area, you must call the Telephone Claims Center before you leave. They will tell you whether your benefit rights can be protected while you are away. You could lose your benefits if you fail to advise the TCC before you leave. Also, when you travel to a foreign country (except Canada), you should not use our web or phone systems to claim benefits while you are in the foreign country. If we learn that you received benefits while outside of the United States, we will issue an overpayment determination. That makes you liable to repay any benefits that you were not entitled to receive. You are in a foreign country when you go outside of the United States or a U.S. Territory (except Canada). Claimants may file for UI benefits From Canada using our web or phone systems. However, if you plan to leave your normal labor market to travel to Canada, you still must call the Telephone Claims Center before you go."

Recently, I have spoken to Claimants who, while in a foreign country, have had friends or family home certify for them while out of country. It would appear that the DOL is taking a hard position on this if and when discovered and may impose a penalty for false certification.

GUEST POST ON HAMP - STEPHEN K. HACHEY, ESQ.

Federal Home Affordable Modification Program (HAMP) Explained

The federal Home Affordable Modification Program (HAMP) was implemented to reduce the number of foreclosures, support the housing industry and keep mortgages more affordable for the millions of Americans living in homes that are worth less than what they owe. The idea behind this program is that if banks will work with their borrowers to lower the monthly payments and interest rates, homeownership will be more affordable in the short term as well as the long term and both the individual homeowner and the housing market as a whole will be more secure. This program works well for the banks too, because it allows them to give homeowners an opportunity to fortify their mortgages. Financial institutions do not want to foreclose on properties unless it’s absolutely necessary; it only leaves them with a flood of properties instead of repaid mortgages.

There are certain conditions that need to be met in order for you to qualify for HAMP. For starters, you must be trying to modify the loan on your primary residence. Banks are not interested in helping you avoid foreclosure on vacation homes or investment properties. Your primary residence should be the focus of your efforts to work with your lender through HAMP. Some exceptions can be made if you own a property that is currently being rented out, or you intend to rent out the residence. If that is the case, you may still qualify for a modification through HAMP.

You must have obtained your mortgage on or before January 1, 2009. Any loans made after that date are likely using reasonable terms and interest rates, so you can only use HAMP to modify a mortgage if it is an older loan. The amount you owe must not be higher than the limits currently imposed by the government. For a single family residence, you cannot owe more than $729,750 on your mortgage.

There must be some sort of financial hardship that is making it difficult for you to meet your mortgage obligations. This could be a health problem, unemployment, a divorce or some sudden and unexpected change to your financial standing. HAMP only applies to people who are currently delinquent in their mortgage payments, or in danger of becoming delinquent due to that financial hardship.

While financial hardships are expected, in order to qualify for HAMP, you must also be able to demonstrate you have sustainable income. The amount of money you earn must be able to cover the cost of your mortgage payments on a monthly basis. Finally, you must have an acceptable criminal record. You cannot take advantage of HAMP if you have been convicted of a felony theft, robbery, money laundering or larceny in the last 10 years.

Homeowners who meet the qualifications of HAMP should talk to their lenders and find out how to take advantage of this federal program. Modifying a mortgage to make it more affordable is a great way to keep your financial future secure and to ensure you will be able to retain your home as both a place to live and a reliable investment for the future.
 

This post was written for Jon Michael Probstein by Stephen K .Hachey. Stephen is an Orlando real estate lawyer specializing in loan modifications, short sales, foreclosure and much more. He is also the owner of his own practice, the Law Offices of Stephen Hachey, PA. This article is for general informational purposes only and does not establish an attorney-client relationship. Please contact a licensed attorney in your state of residence. For more information on our services, please visit our website at www.floridarealestatelawyer.org/.

 

 

PASSOVER GREETINGS

UNLICENSED HOME IMPROVEMENT CONTRACTORS - NASSAU COUNTY

From the Nassau County Office of Consumer Affairs website:

"Home Improvement" means repair, maintenance, replacement, remodeling, alteration, conversion, modernization, or addition to any land or building, or that portion thereof, which is used as a private residence or dwelling place for not more than three families, and other improvements to structures or upon land which is adjacent to a dwelling, and shall include, but not be limited to, the installation, construction, replacement or improvement of driveways, swimming pools, porches, garages, sheds, central heating or air conditioning systems, vacuum cleaning systems, windows and awnings, sandblasting, power washing, waterproofing, floor refinishing, chimney cleaning, interior and/or exterior painting, carpet installation, and gardening/landscaping, when the gardener/landscaper uses his/her own equipment in the conduct of his/her business and uses his/her vehicle to transport such equipment.

 

Who Must Be Licensed?

 

OCA issues licenses to contractors conducting home improvement business in Nassau County. Home Improvement is a broad term that includes, but is not limited to the following areas of work:

• air conditioning & heating systems
• carpentry work
• ceramic tile & marble installers
• cesspool builders & cleaners
• chimney/fireplace builders, repairs, cleaners
• doors, windows, awnings
• dry wall contractors
• fences and railings
• fire escape stairs & ladders
• floor installation & refinishing (including sub-floors)
• garage builders
• general contractors
• insulation contractors
• lawn irrigation contractors
• masonry work
• painting contractors
• paving and driveway seal coating
• power washers & sandblasters
• reglazing/porcelain refinishing
• retaining wall contractors
• roofing contractors
• sewer cleaners
• siding installation
• swimming pool (building, installing and maintenance)
• tree surgery
• vacuum cleaner central systems
• waterproofing
• well drilling"

UNLICENSED HOME IMPROVEMENT CONTRACTORS

An example of what could happen:

"
34 Misc.3d 43 (2011)
937 N.Y.S.2d 822
2011 NY Slip Op 21460

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JOHN STEPHENS, Appellant.

2009-2507 NCR.

Supreme Court, Appellate Term, Second Department.

Decided December 27, 2011.

44*44 Hofstra Law Clinic, Hempstead (Jacob L. Stevens of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola (Judith R. Sternberg and Cristin N. Connell of counsel), for respondent.

MOLIA, J.P., TANENBAUM and LaCAVA, JJ., concur.

OPINION OF THE COURT

MEMORANDUM.

Ordered that the judgment of conviction is affirmed.

Defendant was charged with operating a home improvement business without a license in violation of Nassau County Administrative Code § 21-11.2 (as added by Local Law No. 6 [1970] of Nassau County). The ordinance provides that "[n]o person shall own, maintain, conduct, operate, engage in or transact a home improvement business after January first nineteen hundred seventy two, or hold himself out as being able to do so after such date unless he is licensed therefore pursuant to this title." Conspicuously absent from the ordinance is the requirement of a culpable mental state.

At the conclusion of the trial, defense counsel requested that the District Court instruct the jury that, in order to find defendant guilty of the charged offense, defendant must have acted either recklessly or negligently in failing to obtain a home improvement business license. Defense counsel also asked the District Court to charge the jury with the affirmative defense of entrapment by estoppel (Penal Law § 15.20 [2]). The District Court declined to issue either charge, and the jury found defendant guilty.

45*45 Contrary to defendant's contention, the District Court properly declined to charge the jury that the alleged offense requires proof of a culpable mental state. New York precedents have formulated the equivalent of a rational basis test to determine whether a criminal statute or ordinance which specifies only an actus reus imposes strict liability. This standard requires a court to discern whether there is a reasonable relationship between the purpose of the criminal statute or ordinance, along with the conduct it proscribes, and the "safety, health, morals or welfare" of the public (People v Munoz, 9 NY2d 51, 58 [1961]; see People v Campbell, 72 NY2d 602, 609 [1988, Bellacosa, J., dissenting]). A statute or ordinance will be found to impose strict liability when such a reasonable relationship exists.

Applying the aforementioned test to Local Law No. 6, we find that the District Court correctly declined to impute a culpable mental state to its language. With respect to the purpose of the provision, the preamble to Local Law No. 6 explicitly provides that "[i]t is the purpose of the Board of Supervisors in enacting this Local Law to safeguard and protect the homeowner against abuses on the part of home improvement contractors by regulating the home improvement, remodeling and repair business and by licensing of persons engaged in such business" (Nassau County Administrative Code § 21-11.0). Thus, the Board of Supervisors specifically intended that Local Law No. 6 protect the public from fraud, shoddy workmanship and other safety concerns attendant to unlicensed contractors.

Furthermore, in proscribing unlicensed contractors' engaging in home improvement work, Local Law No. 6 protects the public from the inherent harm in trusting their safety and property to nonlicensed individuals. As a result, Local Law No. 6 "specifies a strict liability offense not requiring any culpable mental state," and we choose to refrain from "rewrit[ing] the plain words of the statute by adding, through judicial gloss, a culpable mental state or new element not provided by the [Board of Supervisors]" (People v Nelson, 11 Misc 3d 126[A], 2006 NY Slip Op 50201[U], *2 [App Term, 1st Dept 2006]).

The District Court also properly denied defendant's request to charge the jury with the affirmative defense of entrapment by estoppel. Penal Law § 15.20 (2) states that

"[a] person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of 46*46 law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law" (emphasis added).

The "official statement of . . . law," however, "must in fact authorize the conduct in question; a reasonable belief that the statement authorizes such conduct is insufficient" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 125-126 [internal quotation marks omitted]; see People v Fraser, 96 NY2d 318, 326 [2001]). In this case, defendant failed to demonstrate that Village of Roslyn officials had authorized him to perform construction work on the complainant's home without the requisite home improvement business license. At most, defendant established that the Village had erred when it had issued him a construction permit based on inaccurate licensing information.

We note in passing that Municipal Home Rule Law § 10 (1) (ii) (a) (12) (b) has no bearing on the disposition of this appeal because the Village of Roslyn does not regulate the licensing of home improvement businesses.

Accordingly, the judgment of conviction is affirmed.

MORE ON SUPERSTORM SANDY

The issue of insurance checks being held in limbo continues.

See the following article: Cuomo says ten banks holding back some superstorm Sandy payouts

MORE ON SUPERSTORM SANDY

To be aware of in this housing market with the economy, foreclosures, etc:

Sandy-damaged homes hit market at bargain prices

SANDY CLINIC TODAY

Today I will be a volunteer lawyer at NCBA Sandy Clinic:

"NCBA holds monthly clinics both on and off premises for Sandy Victims. At these clinics, volunteer attorneys offer advice and consultation concerning numerous issues such as insurance, landlord tenant, coops and condos, labor and employment, and a host of other legal issues. Both FEMA and SBA representatives are present at all our Sandy Clinics."

NEW YORK MORTGAGE FORECLOSURE - BANKRUPTCY

Recently, I received an infomrative email from the firm of Thaler Gertler LLP entitled: "

Using Bankruptcy as a Tool for Saving Property from Foreclosure"

Here is a link to the discussion:

http://campaign.r20.constantcontact.com/render?llr=agzgyolab&v=001Uw9QefivccLAel1cSq0JHHOH3Hnfq-MLQrmkOWoZz_tgvxlFcIWvCEf7wrpesg2x_lM2ydMsOcRYD6WIp2CZObsWK4n82SuI5ylVzXKJmh0%3D

MORE ON SUPERSTORM SANDY

JPMORGAN CHASE BANK, N.A., Plaintiff, v. Beth EISENBERG, Bank of America, N.A., John Does and Jane Does, said names being fictitious, Defendants. Index No. 382/11 (Jan 14, 2013, Sup. Ct., Nassau County, F. Dana Winslow, J.)

I am advised that this is being appealed but the court held in this foreclosure matter that sanctions would be imposed for bank’s refusal to cosign FEMA checks for bad faith under Rule 130 of Uniform Court Rules.. 

MORE ON SUPERSTORM SANDY

Yesterday, Governor Andrew M. Cuomo submitted New York State's proposal for housing and business recovery programs to help New Yorkers devastated by Superstorm Sandy, as well as Hurricane Irene and Tropical Storm Lee. One of these programs is discussed below:
 

Recreate NY Smart Home Buyout Program - $171 million: Certain areas are at high risk for repeated flooding, causing damage to homes and risking the lives of residents and emergency responders. To reduce those risks and provide residents with an opportunity to leave their properties, New York State will offer voluntary Buyouts for homes that were:

• substantially damaged inside the 500-year flood plain, or
• located within designated buyout areas where damage occurred and where property may be susceptible to future damage due to sea level rise and other factors. These enhanced buyout areas will be selected in consultation with county and local government officials.
• In very high risk areas, there will be a prohibition on rebuilding and these areas will be used as buffer zones. Under the States proposal, and subject to approval by HUD, re-development of property outside of the100-year floodplain that is acquired through a buyout would be permitted, so long as the new structure is built to mitigate future flood impact. Homeowners will be notified if they are eligible for a buyout after HUD has approved this plan.

Homeowners eligible for a buyout will receive the full pre-storm fair market value for their home up to the FHA loan limit. An incentive of up to 5% will also be offered to families that relocate within their home county or borough.

MORE ON SUPERSTORM SANDY

There is a new grant program - Recreate NY Smart Home assistance - that homeowners can pre-register for.

There is also a program - Small Business Storm Recovery Program - that business owners can register for.

For more information, go to:

http://nysandyhelp.ny.gov/

SANDY CLINIC TODAY

Today I will be a volunteer lawyer at NCBA Sandy Clinic:

"NCBA holds monthly clinics both on and off premises for Sandy Victims. At these clinics, volunteer attorneys offer advice and consultation concerning numerous issues such as insurance, landlord tenant, coops and condos, labor and employment, and a host of other legal issues. Both FEMA and SBA representatives are present at all our Sandy Clinics."

NEW YORK MORTGAGE FORECLOSURE - CRISIS ON LONG ISLAND

Here is some more information that I pass along from the Long Island Mortgage Foreclosure Crisis seminar:

"FINDING: Foreclosures are disproportionately hurting Long Island's minority communities.
Areas with high foreclosure concentrations and low lending levels are most often areas of high Black and Latino home ownership. The crisis is not only impacting the households actually in foreclosure, but also the majority of Black and Latino homeowners in each county. The foreclosure crisis raises a significant threat to the "asset wealth" of minority communities."

NEW YORK MORTGAGE FORECLOSURE - CRISIS ON LONG ISLAND

Here is some more information that I pass along from the Long Island Mortagage Foreclosure Crisis seminar:

"FINDING: The most impacted areas have seen reduced lending, threatening economic recovery.
The areas identified as Impact areas" as a result of the foreciosure crisis have also seen large declines in home purchase lending from 2006 to 2010. The result is a "double-whammy" - foreclosures have increased the need for more home purchase financing, but less financing is available."

NEW YORK MORTGAGE FORECLOSURE - CRISIS ON LONG ISLAND

Yesterday, I attended a seminar sponsored by Empire Justice center, among others, on the Long Island Mortagage Foreclosure Crisis.

Some information that I pass along:

"FINDING: Foreclosures are widespread but many communities have disproportionate concentrations. Foreclosures occur all over Long Island but each county has numerous areas with concentrations of foreclosures much higher than the rest of the county."
.

MORE ON SUPERSTORM SANDY

On February 28, Governor Andrew M. Cuomo announced that five of New York’s largest banks and mortgage servicers will have representatives available to offer one-on-one help to homeowners seeking the release of Superstorm Sandy insurance settlement funds at the Department of Financial Services’ Disaster Assistance Centers from Monday, March 4 through Saturday, March 9.

A link to the press announcement can be found here:

http://www.governor.ny.gov/press/02282013DFS-Program

MORTGAGE FORECLOSURE CLINIC AT NCBA

I will be a volunteer lawyer today:

"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, bankruptcy attorneys and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- are on hand to provide assistance.

→ Reservations are required by calling the Bar Association at 516-747-4070. Please bring your mortgage documents. Attorneys fluent in other languages are available upon request when reserving.

All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola."

SANDY AND INSURANCE CHECKS

In todays Newsday, there is an article about how "a Cuomo administration official admitted Thursday the state "did not foresee" the problem of banks holding up insurance checks to Sandy victims in the immediate aftermath of last fall's superstorm."

If you have a mortgage, and your home has suffered severe damage or been destroyed, some or all of the payment checks from your insurance company will be made payable jointly to BOTH you and your mortgage company. This happens because your lender has a financial interest in the property that your insurer will honor/protect.

Until your mortgage company releases its claim on some or all of the funds, they will sit in your mortgage company’s account. This means that before you can begin to rebuild, you must first understand the process of how to get your mortgage lender to let go of your insurance proceeds.