NEW RULES ON REVERSE MORTGAGES

They go into effect March 2 and will be restrictive - it may no longer be available for some seniors.

Many articles have been written - this one is from The Huffington Post:

http://www.huffingtonpost.com/jack-m-guttentag/after-march-2-reverse-mor_b_6541782.html

TONIGHT CLE ON REVERSE MORTGAGES

At Nassau County Bar Association. For details:

https://www.nassaubar.org/Calendar/Signup.aspx?EventNo=7930

NYC PAID SICK LEAVE LAW AND SNOW

This past summer, NYC enacted the Paid Sick Leave Law which allows covered employees who work over 80 hours a year to begin using accrued sick leave. The ratio is one hour of sick leave for every 30 hours worked, with a limit of 40 hours of sick leave per calendar year.

And how did yesterday's blizzard affect it?

"Important Snow Storm Information

Paid Sick Leave and Weather: Employers are not required to provide paid sick leave to employees who are late or absent as a result of the weather and employers are not required to provide sick leave if the employer is closed due to the weather."

See http://www.nyc.gov/html/dca/html/law/PaidSickLeave.shtml

THE LAW AND SNOW

SNOW AND NYS COURT CLOSINGS

To find out which New York State courts are closed, see:

http://www.nycourts.gov/notice/index.shtml

"NEW" NEW YORK LAWS FOR 2015

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

For a list of some of the new laws see:

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

TIME BARRED DEBT COLLECTION

From a press release from New York State Attorney General:

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

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

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

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

JANUARY - DIVORCE MONTH?

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

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

CONSUMER LAW - RECISSION

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

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

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

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

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

ON "SELF HELP" ATTEMPT TO TERMINATE CHILD SUPPORT

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

......

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

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

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

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

FREE SENIOR CLINIC TODAY AT NASSAU COUNTY BAR ASSOCIARION

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

I will be a volunteer.

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

FREE ONLINE RESEARCH TOOL

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

From their email:

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

A NOTE TO CLAIMANTS RE: MISCONDUCT CLAIMS

An article in today's Newsday highlights some of the steps employers may take in terminating an employee - steps which may involve some difficulty for Claimants who are protesting denial on the grounds of misconduct and other issues or potential claims.

Employees may well be advised to document their employment as their employers are doing.

See http://www.newsday.com/business/how-to-fire-a-bully-without-getting-sued-1.9799169

NEW YORK STATE MORTGAGE ASSISTANCE PROGRAM

Today Newsday reported on some first loan closings made under the program

http://www.newsday.com/news/mortgage-program-offers-struggling-homeowners-fresh-start-1.9795688

According to the article:

"The state received 146 applications for the loan program in just over three months -- 41 from Long Island. Twenty-six loans have been approved since mid-November. Applicants are eligible for up to $40,000, according to the statement."

In my view, a very small amount - it would appear that the program is not aimed at the majority of homeowners who are in foreclosure due to "unaffordable housing".

A link to the program's website is below:

http://nysmap.org/

LISTING ON JUSTIA

https://lawyers.justia.com/lawyer/jon-michael-probstein-1500859

ON REVERSE MORTGAGES

Both of these links should give you some insight - they have their pros and cons:

 

http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/sfh/hecm/hecmhome

http://www.dfs.ny.gov/consumer/reversemortgage.htm

 

REDACTION RULES IN NEW YORK

For a discussion of the recent new section of the Uniform Rules of the Supreme and County Courts, Section 202.5 (e) regarding redaction:

http://www.flinksmithlaw.com/oca-orders-change-filing-requirements-protect-identity-theft/

NEW YORK - ANNUAL WAGE STATEMENTS NO LONGER REQUIRED

From the Department of Labor website:

"On December 29, 2014, Governor Andrew M. Cuomo signed a bill eliminating the requirement that before February 1 of each year, employers notify and receive written acknowledgement from every worker about their rate of pay, allowances, pay day, etc. According to the signing statement, legislative leaders and the Governor have agreed to a chapter amendment to make this change effective immediately. Accordingly, given the pending enactment of this chapter amendment, the Department will not require annual statements in 2015.

Please note, businesses are still required to notify employees as required at the time of hire. "

OCWEN FORECLOSURE SETTLEMENT AGREEMENT NEW YORK

On December 22, Ocwen issued a press release "Ocwen Financial Agrees to Settlement With New York Dept. of Financial Services"

The full release can be found at this link:

http://shareholders.ocwen.com/releasedetail.cfm?ReleaseID=888667

SUSPENSION OF CHILD SUPPORT

From Whitaker v Case, 2014 NY Slip Op 07707, 3rd Dept 11-13-14:

"We turn next to Supreme Court's directive retroactively suspending the wife's child support obligation and refunding certain child support made, challenged by both the husband and the attorney for the children ^[FN4]. A noncustodial parent's duty to support his or her children until the age of 21 (see Family Ct Act § 413 [1] [a]) may be suspended where he or she establishes that the custodial parent "wrongfully interfered with or withheld visitation" (Matter of Luke v Luke, 90 AD3d 1179, 1182 [2011]; see Domestic Relations Law § 241; Usack v Usack, 17 AD3d 736, 737-738 [2005]). Here, Supreme Court's decision describes a household rife with animosity and overtones of domestic violence. Indeed, the protracted hostility between the parties led the court to grant a mutual divorce pursuant to Domestic Relations Law § 170 (1) because "both [were] batterers and BOTH [were] victims." After one particularly abusive event, the wife left the household and the court ordered her and the children to engage in therapeutic visitation, with the husband's assistance. Regrettably, these sessions failed and were discontinued in March 2010, and the children refused further contact with the wife. In our view, while the record shows that the wife's behavior was not above reproach, it also supports the court's finding that the husband behaved badly in both his demeanor and his efforts to promote therapeutic counseling. Notably, for example, the initial therapeutic counselor asserted that he undermined the therapeutic process, and the court-appointed psychologist went even further, describing the husband as a "parent alienator" who "brainwashed" the children against the wife. Accordingly, we find a reasoned [*4]basis in this record for Supreme Court's determination to suspend the wife's child support obligations pending the husband's demonstration of a good faith effort to assist in the therapeutic process undoubtedly needed to reunite the wife with the children. Further, there is no indication that this remedy presented any risk to the children becoming public charges (see Usack v Usack, 17 AD3d at 740).

Upon its finding of interference, Supreme Court was authorized to suspend child support payments (see Domestic Relations Law § 241; Alan D. Sheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 241 at 22-23). Here, during the pendency of her application to suspend her child support obligation, the wife paid child support directly to the husband from November 2009 through April 22, 2011. Thereafter, pursuant to an order entered May 5, 2011, the wife paid child support to the support collection unit to be held pending resolution of her interference claim. Under the circumstances presented, we perceive no abuse of discretion in the court's determination to permit the wife's child support payments to be held in escrow during the pendency of the issue (see Matter of Lew v Sobel, 91 AD3d 648, 648 [2012]). Similarly, we find that, under the circumstances, the court properly suspended her child support obligation retroactively, but only to the date the escrow fund was established (compare Matter of Luke v Luke, 90 AD3d at 1182; Matter of Alexander v Alexander, 129 AD2d 882, 884 [1987]) and directed the return of the escrowed monies to her. In contrast, we find that Supreme Court improperly adjusted the distributive award payable to the wife to reimburse her for the child support payments that she actually made to the husband for the benefit of the children during the pendency of her application. In our view, this adjustment violated the "strong public policy against restitution or recoupment of support overpayments" (Johnson v Chapin, 12 NY3d 461, 466 [2009] [internal quotation marks and citation omitted]; see Katz v Katz, 55 AD3d 680, 683 [2008]). We see no reason to depart from that policy in this case."