HAPPY LABOR DAY

THE SECOND DEPARTMENT AND RECENT RELOCATION REQUESTS

Compare Matter of Hall v Hall 2014 NY Slip Op 04487 Decided on June 18, 2014 Appellate Division, Second Department (Relocation with single child to Georgia allowed - mother had remarried and child blended into new family) with Matter of Haughton v Tsang 2014 NY Slip Op 04488 Decided on June 18, 2014 Appellate Division, Second Department (relocation of two children to Florida denied - limited facts).

HOPE LOAN PORT - MORTGAGE FORECLOSURE AND MODIFICATIONS

"Hope LoanPort^® (HLP) is a neutral, national, and non-profit utility providing technology-based solutions that facilitate transparency, accessibility, consistency of treatment and a superior experience to consumers and their advocates in pursuit of foreclosure alternatives and affordable home loans in underserved markets. Use of HLP is free for the authorized HUD-approved nonprofit housing counselors working on behalf of the homeowner. For mortgage servicers, homeowners and their advocates, HLP is an established communication and processing platform dedicated to providing homeowners with a neutral assistance option. HLP is regularly updated to facilitate compliance with evolving Federal and Investor assistance programs and servicing guidelines. HLP's secured web-based portal includes real time messaging between counselors and servicers, status updates, and electronic document storage."

See https://www.hopeloanportal.org/

MORTGAGE MODIFICATION SCAMS

Earlier this month,  three defendants in New York were charged with engaging in a mortgage modification scheme that defrauded over 8,000 homeowners in all 50 states out of over $18.5 million, in what is believed to be the largest mortgage modification scheme ever charged.

For the story, see http://nationalmortgageprofessional.com/news50934/Loan-Mod-Scheme-Netting-18.5-Million-From-8%2C000-Plus-Victims-Taken-Down

BONA FIDE PURCHASER AND MORTGAGE FORECLOSURE

Supplementing an earlier post, in foreclosure actions, an issue may arise on the effect of possession of an occupant of real property by one other than the seller/vendor on a prospective purchaser's status as a bona fide purchaser. This appears to be a concern in certain foreclosure rescue scams.

The Home Equity Theft Reporter Cases & Articles has compiled a list of New York cases, from trial courts to Court of Appeals:

http://homeequitytheft-cases-articles.blogspot.com/2014/08/new-york-bona-fide-purchaserduty-to_2.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+TheHomeEquityTheftReporterCasesArticles+%28The+Home+Equity+Theft+Reporter+Cases+%26+Articles%29

THE AFTERMATH OF FORECLOSURE

A story about what some towns face:

NEWSDAY - Cost to maintain vacant, foreclosed homes upsets Babylon officials

NEW YORK MATRIMONIAL LAW - CHILD CUSTODY & BLENDED FAMILIES

We all know about the Brady Bunch and the perfect blended family - but that was TV and not real life. In the following case, it became one of the factors that led the court to determine that custody should be changed from mother to father:

Matter of Matter of Cheney v Cheney 2014 NY Slip Op 04372 Decided on June 13, 2014 Appellate Division, Fourth Department:

"The record also supports Family Court's determination that, although the child had been outgoing in nature with a sunny disposition, she became withdrawn, sad and subject to emotional outbursts after the mother moved in with her current boyfriend and his three children."

NEW YORK MATRIMONIAL LAW - MODIFICATIONS TO SETTLEMENTS

See Matter of Matter of Kristina P. (Joseph Q.) 2014 NY Slip Op 04109 Decided on June 5, 2014 Appellate Division, Third Department:

".....

The parties' oral stipulation and opting out agreement, which was incorporated but not merged into their 2007 judgment of divorce, obligated the father to pay child support to the mother in the amount of $485 per week, but was silent as to responsibility for the cost of the children's educational expenses. In October 2011, as a result of difficulties the child was experiencing in public school, the mother asked for the father's consent to enroll the child in a private Catholic school. The father ultimately agreed, on the condition that the mother take full responsibility for payment of the child's tuition, and the parties' agreement was memorialized in a written, notarized statement. The child was then enrolled in the private school and, at the end of that school year, the mother commenced this modification proceeding seeking to, among other things, require the father to pay his pro rata share of the child's educational expenses. After a hearing, a Support Magistrate determined, as relevant here, that the father was obligated to pay 71% of the child's private school tuition, beginning with the 2012-2013 academic year. Family Court subsequently denied the father's objections and this appeal by the father ensued.

We affirm. Initially, we conclude that the father's reliance on the parties' written agreement that the mother would bear the cost of the child's tuition is misplaced, as Family Court [*2]has no jurisdiction to enforce such independent contract (see Matter of Hirsch v Schwartz, 93 AD3d 1114, 1115 [2012]; Matter of Zamjohn v Zamjohn, 158 AD2d 895, 896 [1990]).
.......
"

TO HOMEOWNERS - UNDERSTANDING MECHANICS LIENS

From Mark S. Gottlieb, CPA PC (MSG):

http://www.bizactions.com/n.cfm/page/e100/key/271450300G2334J5952409N0P36P1272T1/

FORECLOSURE BONDS

From yesterday's New York Times:

http://dealbook.nytimes.com/2014/08/13/delinquent-mortgages-attracting-investors/?_php=true&_type=blogs&_r=0

PROPOSED DISCOVERY RULE FOR COMMERCIAL CASES

From a press release from OCA in June (italics supplied):

"The Commercial Division Advisory Council has recommended adoption of a new Rule of
the Commercial Division that would establish a presumptive limit of 10 depositions for each side
and limit the duration of depositions to seven hours per witness (Exh. A). The Advisory
Council's proposal follows up on the 2012 Report of the Chief Judge's Task Force on
Commercial Litigation in the 21' Century, which endorsed the limitations on depositions set
forth in the Federal Rules of Civil Procedure. The Advisory Council's proposed limit of 10
depositions per side is consistent with Fed. Rule Civ. P. 30(a)(2)(A)(i) and procedural rules of
other states. The seven hour durational limit is consistent with Fed. Rule Civ. P. 30(d)(1) and
would allow for reasonable breaks for lunch and other reasons. To ensure that litigants and
judges have flexibility to tailor the presumptive limitations to the circumstances of each case, the
parties would be able to extend or alter the presumptive limits by agreement. Absent such an
agreement, the party seeking a variance would be required to obtain an appropriate court order
upon a showing of good cause. The Advisory Council believes that this proposal will improve
the efficiency of discovery and reduce the overall cost of litigation.
Persons wishing to comment on this proposal should e-mail their submissions to
rulecomments@nycourts.gov or write to: John W. McConnell, Esq., Counsel, Office of Court
Administration, 25 Beaver Street, 11th Fl., New York, New York 10004. Comments must be
received no later than August 19, 2014.
All public comments will be treated as available for disclosure under the Freedom of
Information Law and are subject to publication by the Office of Court Administration.
Issuance of a proposal for public comment should not be interpreted as an endorsement of
that proposal by the Unified Court System or the Office of Court Administration."

NEW YORK CHILD CUSTODY - ROLE OF ATTORNEY FOR CHILD

Attorneys, judges, etc. are human and we all have our opinions, bias, prejudices, etc. Many times I have heard complaints, from clients or opposing side in matrimonial matters, regarding the position taken by the attorney for the child.

This recent case came to my attention...Shaw v. Bice, --- A.D.3d ---, --- N.Y.S.2d --- (Fourth Dept. 2014)(2014 WL 1855552)(2014 N.Y. Slip Op. 03410)(May 09, 2014) and I believe it is important for litigants in custody matters to recognize this rule regarding the attorney for the child:

"The Rules of the Chief Judge provide that an attorney for the child 'must zealously advocate the child's position' and that, '[i]f the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests' (22 NYCRR 7.2[d][2]; see Matter of Swinson v. Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d 862). Nevertheless, '[w]hen the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position' (22 NYCRR 7.2[d][3])."

 

Question: the court states "the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so"...it would be my opinion that the attorney for the child must inform the child of this right. But what if the child is very young or otherwise is unable to understand this...should the attorney for the child inform the court of the child's wishes even if the child did not state to the attorney that the child wants the attorney to do so?

NEW YORK FORECLOSURE STATUS

Last month, RealtyTrac® (www.realtytrac.com), the leading online marketplace for real estate data, today released its Midyear 2014 U.S. Foreclosure Market Report which noted the following regarding New York foreclosures:

1. Lender repossessions ions up 49%

2. Foreclosure actions up 10%

3. The average time to foreclosure decreased 10% to 930 days.

See: http://www.realtytrac.com/content/foreclosure-market-report/june-and-midyear-2014-us-foreclosure-market-report-8111

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 15

Here are links to various articles, etc. discussing this issue:

http://www.forbes.com/sites/theemploymentbeat/2013/12/06/will-new-tax-law-punish-employers-that-agree-not-to-content-unemployment-claims/

http://www.lcwlegal.com/85941

http://www.laborandemploymentlawcounsel.com/2013/11/you-dont-have-the-right-to-remain-silent-how-new-unemployment-insurance-integrity-laws-may-affect-your-separation-and-settlement-agreements-with-departing-employees/

http://www.costaffservices.com/news/michigan-unemployment-agency-to-crack-down-on-agreements-not-to-contest-unemployment-claims/

http://minnesotaemployer.com/2012/07/18/can-an-employer-agree-not-to-contest-unemployment-benefits/

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 14

In January of this year, the California law firm of Lozano Smith authored an article "New Risks in the New Year: Use Caution with "Agreement Not to Contest Unemployment Benefits" Clauses". Although dealing with California law, I am mindful that like New York, California had to conform its Unmeployment Insurance rules to conform with the same Unemployment Insurance Integrity Act  originally passed Congress in 2011 that took effect in late 2013.

In many respects, California UI is similar to New York's rules as the article notes:

"California law, enacted in response to the Act, allows for employers to lose credit for payments into their unemployment insurance account when "the employer or agent fails to respond timely or adequately in two instances relating to the individual claim for unemployment compensation benefits." (Unemp. Ins. Code §1026.1.) Further, under California law, if the employer "willfully makes a false statement of representation or willfully fails to report a material fact concerning termination," the employer and/or the employer's agent can be fined between two and ten times the weekly benefit amount (up to a maximum of $4,500). (Unemp. Ins. Code §1142, et. seq.)"

The article conludes with (note that the EDD is the California Employment Development Department similar to New York's Department of Labor Unemployment Insurance Division):

"Going forward, if you are considering a proposed separation agreement that contains a "do not contest" clause, you should:

Avoid blanket "Do Not Contest" clauses that do not comply with state and federal law.

Include language in the agreement clearly stating that you will not withhold or misstate any information in response to inquiries from the EDD"

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 13

As noted in an earlier post, in April of this year, the law firm of Epstein Becker Green posted an article "Act Now Advisory: Changes to New York State's Unemployment Insurance Laws May Affect Employers' Severance Procedures and How Employers Respond to DOL Inquiries". The article concluded with the following \:

"What New York Employers Should Do Now

• .......
• In light of the potential ramifications of a "pattern of failing to respond," consider eliminating provisions from severance agreements whereby the company agrees not to contest applications for UI benefits. The DOL may, in connection with an assessment of UI eligibility, request a copy of the separation agreement, and nothing in that agreement should appear to demonstrate that you will take any unlawful, untruthful, or otherwise improper action in order for a former employee to receive UI benefits."
  

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 12

Continuing with the DOL notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down" - the following has some items highlighted:

"4. Provide separation notices to employees.
You must give written notice to any employee who is terminated from employment. This notice
is required regardless of the reason for separation or whether it is a temporary or permanent
separation. You must provide this notice on a Record of Employment (IA 12.3) or a form
approved by the Department. It must include:

Employer’s name

New York State Employer Registration Number

The address to send the Notice of Potential Charges (LO 400)

A statement that tells the employee to have the form available when filing a claim for
benefits
You may print a supply of Record of Employment (IA 12.3) forms from our web site,
www.labor.ny.gov (follow the forms and publications link), or request approval of your own form
from the Liability and Determination Section. This form helps ensure that notices and requests
are mailed to you promptly and correctly and experience rating charges are accurate."

I had discussed this form earlier - it should be noted that it states:

"Employee: Keep this certificate. Have it with you if you apply for Unemployment Insurance (UI) benefits. This certificate shows that your job was insured. It does not necessarily mean you qualify for benefits. The UI Claims Center will make that determination if you apply."

Thus, this can be construed as a warning to employees that even if you were advised by your employer that they will consent to UI benefits, the DOL may make an adverse determination.

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 11

Continuing with the DOL notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down" - the following has some items highlighted:

"2. Review notices of benefit entitlement or payment.

The Department will send you a Notice of Potential Charges (LO 400) when we determine that a former employee of yours is eligible to collect UI benefits. You can verify that UI benefits paid to former employees are correct based on the wage information. To ensure your account is completely credited, you must report any discrepancy in wage information or disqualifying information on the Notice of Potential Charges (LO 400) within 10 calendar days of the date on the notice. In most cases, this information will affect UI benefit payments from the date it is received.

The Department charges UI benefits paid to claimants to the account of the employers for whom the claimant worked. Every UI benefit payment charged to an employer’s experience rating account may increase their UI rate in future years. Employers are advised, via the Notice of Experience Rating Charges (IA 96), of all UI benefit payments to former employees that are charged to their accounts. This gives you the opportunity to report any UI benefit payments you believe were made incorrectly. If charges appear incorrect for any other reason, contact the Department’s UI Liability and Determination Section at the address in the letterhead.

Promptly contact the Department of Labor Telephone Claim Center at 1-888-890-5090 if you believe the claimant is currently working or otherwise not entitled to UI benefits. If you are in a position to re-employ the claimant, contact the claimant directly. You can find the claimant’s address on the Notice of Potential Charges (LO 400). In order to maximize savings to potential charges on your account, notify us as soon as possible if the claimant refuses rehire, fails to report to work, or if you are unable to contact them."

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 10

In October of 2013, as part of the new rules promulgated, the DOL issued a notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down"

The notice begins:

"Several factors affect your UI costs. They are:

- UI benefits paid to former employees

- The overall condition of the UI Trust Fund

- Your reporting history

You can take steps to manage these factors and keep UI costs as low as possible. "
 

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 10

A note - and this does apply to this discussion - the DOL requires that Employers issue a Record of Employment (IA 12.3) and states:

"Give this completed form to separated employees to facilitate their application for UI benefits

http://labor.ny.gov/formsdocs/ui/IA12_3.pdf"

I have rarely seen this however furnished to an employee.