Now let's say the Claimant received a Notice of Adverse Determination on the grounds of Voluntary Separation Without Good Cause. Now in the statement to be prepared by the Claimant, the Claimant should be specific and in diary form give the following information:
1. Why did Claimant quit.
2. Describe the date, time, place, people present at the incidences that the Claimant feels gave them reason to quit,
3. Describe in detail each incident.
4. Describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.
5. Describe in detail what the Claimant feels the employer was doing that was in violation of any state or federal law.
6. Describe in detail any changes in the terms and conditions of the Claimant's employment such as pay, work hours, work days, change in location, change in duties, etc.
7. Describe in detail any health issues that led to the Claimant quitting with appropriate medical documentation and whether and when that information was transmitted to the employer and, of course, describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.
The attorney should of course research the Appeals Board and Appellate Division cases of voluntary separation and may have to seek out additional facts. An attorney should treat these type of hearings like any case: preparation is the key.
Wednesday, March 31, 2010
Tuesday, March 30, 2010
UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS
In the statement of facts that I referred to earlier, there are some basic facts that should of course be given by the Claimant:
1. Name of employer.
2. Nature of employer's business.
3. What date Claimant began employment.
4. How did Claimant obtain the employment.
5. What was Claimant employed as, viz job title.
6. What was Claimant's duties.
7. Was the job a union job.
8. Claimant's pay history.
9. The hours and days Claimant worked, viz., Claimant's regular schedule and actual schedule.
10. Whether Claimant received evaluations in writing or orally.
11. When was the last day of employment and what happened that day.
These questions, these facts, will be brought up at the hearing and may be determinative of the Claimant's case.
1. Name of employer.
2. Nature of employer's business.
3. What date Claimant began employment.
4. How did Claimant obtain the employment.
5. What was Claimant employed as, viz job title.
6. What was Claimant's duties.
7. Was the job a union job.
8. Claimant's pay history.
9. The hours and days Claimant worked, viz., Claimant's regular schedule and actual schedule.
10. Whether Claimant received evaluations in writing or orally.
11. When was the last day of employment and what happened that day.
These questions, these facts, will be brought up at the hearing and may be determinative of the Claimant's case.
Monday, March 29, 2010
UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS
Documents - these are important: documents relating to the Claimant's employment, correspondence, emails, handbooks, evaluations, etc. as well as documents relating to the Claimant's application for benefits, questionnaire, notice of determinations, DOL correspondence, history of payments, etc. Many of these may turn up in the hearing file but in order to prepare, I feel an attorney should be reviewing this documentation well in advance.
Sunday, March 28, 2010
UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS
To prepare, I feel an attorney needs a complete narrative about the events leading up to and surrounding the lay-off, firing or quiting. I have found some Claimants do not want to do this work but it helps the Claimant to write this down (typewritten) as this refreshes their memory better than the Claimant sitting down and telling the attorney, either in person or over the phone, the long history of squabbles, disputes or other events in the workplace. Once the Claimant writes this down, the attorney then has a reference that will identify the Claimant's testimony and a reference for the attorney to identify the issues that are related to the firing/quitting/lay-off.
Saturday, March 27, 2010
UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS
I have written on this topic before but bring it up again as on several consultations it has been revealed that some Claimants, for whatever reason,have not been willing to provide counsel with a complete statement of facts and documents. Because of the nature of these hearings and the inability to obtain discovery, it is important for the Claimant to provide the attorney with a complete statement of facts and supporting documents. Some of the information can be classified as follows, to be furnished to the lawyer or representative in typewritten form:
1. Name
2. Addresses
3. Telephone numbers
4. Fax number
5. Email address
6. Employer
7. Occupation
8. Date of birth
9. Social security number
10. United States citizen? Immigration status:
11. What are the names of any other lawyers you have ever consulted regarding this case?
12. Describe and attach any papers you been served with concerning this case.
13. Describe any documents you have relating to this case.
14. Do you have access to your files or papers relating to this case?
15. Identify any witnesses or people with knowledge of the facts of this case.
16. Describe any statements you have made to anyone concerning this case.
17. MOST IMPORTANT - Describe in chronological order, a history of your relationship and issues concerning your employment. I will go more into this later.
1. Name
2. Addresses
3. Telephone numbers
4. Fax number
5. Email address
6. Employer
7. Occupation
8. Date of birth
9. Social security number
10. United States citizen? Immigration status:
11. What are the names of any other lawyers you have ever consulted regarding this case?
12. Describe and attach any papers you been served with concerning this case.
13. Describe any documents you have relating to this case.
14. Do you have access to your files or papers relating to this case?
15. Identify any witnesses or people with knowledge of the facts of this case.
16. Describe any statements you have made to anyone concerning this case.
17. MOST IMPORTANT - Describe in chronological order, a history of your relationship and issues concerning your employment. I will go more into this later.
Friday, March 26, 2010
MORTGAGE FORECLOSURE
From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:
"Distressed Property Consultants
Upfront payment prohibited (adds Banking Law § 595-a(5)): Prohibits a “distressed property consultant” (defined in RPL § 265-b) from charging or accepting any payment for real property consulting services before the full completion of such service.
Attorneys, brokers and loan officers (amends RPL § 265-b): The 2008 Act created regulations for “distressed property consultants.” Attorneys were excluded from the definition of “distressed property consultants.” The definition is amended to exclude attorneys only “when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice.” 35 The 2008 Act also excluded mortgage brokers and loan services (as defined in Banking Law 12-D), however, the new law prohibits mortgage brokers and loan officers from taking any upfront fees in conjunction with activities constituting the business of a distressed property consultant. 36
Mortgage loan servicers (amends Banking Law § 590(2)(b) and (b-1))
A technical amendment is made, to comport with the 2008 Act, to include mortgage loan servicers in the list of entities that must be registered with the Banking Department. A provision also is added to allow the superintendent of the Banking Department to require registration and notifications to be made through Nationwide Mortgage Licensing System and Registry and describing how registration fees for mortgage loan servicers are to be collected and considered.
Residential Mortgage Fraud
Definition amended (amends Penal Law Article § 187.00): The 2008 Act codified “residential mortgage fraud.” The definition of “residential mortgage loan” is amended to include a loan modification (in addition to loan, agreement to extend credit and refinancing), and in the case of cooperative ownership, to include a proprietary lease from a corporation or partnership. Minor technical changes (wording) are made, as well.
Limitation on prosecution (adds Penal Law Article § 187.01): A new section is added to prohibit prosecution of anyone who applies for a residential mortgage loan who intends to occupy the residential property unless the individual acts as an accessory to the residential mortgage fraud. Minor technical amendments are made, as well.
FOOTNOTES
35 Real Property Law § 265-b(2)(b)(1)(e)(i).
36 Real Property Law § 265-b(2)(b)(1)(e)(vii)."
"Distressed Property Consultants
Upfront payment prohibited (adds Banking Law § 595-a(5)): Prohibits a “distressed property consultant” (defined in RPL § 265-b) from charging or accepting any payment for real property consulting services before the full completion of such service.
Attorneys, brokers and loan officers (amends RPL § 265-b): The 2008 Act created regulations for “distressed property consultants.” Attorneys were excluded from the definition of “distressed property consultants.” The definition is amended to exclude attorneys only “when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice.” 35 The 2008 Act also excluded mortgage brokers and loan services (as defined in Banking Law 12-D), however, the new law prohibits mortgage brokers and loan officers from taking any upfront fees in conjunction with activities constituting the business of a distressed property consultant. 36
Mortgage loan servicers (amends Banking Law § 590(2)(b) and (b-1))
A technical amendment is made, to comport with the 2008 Act, to include mortgage loan servicers in the list of entities that must be registered with the Banking Department. A provision also is added to allow the superintendent of the Banking Department to require registration and notifications to be made through Nationwide Mortgage Licensing System and Registry and describing how registration fees for mortgage loan servicers are to be collected and considered.
Residential Mortgage Fraud
Definition amended (amends Penal Law Article § 187.00): The 2008 Act codified “residential mortgage fraud.” The definition of “residential mortgage loan” is amended to include a loan modification (in addition to loan, agreement to extend credit and refinancing), and in the case of cooperative ownership, to include a proprietary lease from a corporation or partnership. Minor technical changes (wording) are made, as well.
Limitation on prosecution (adds Penal Law Article § 187.01): A new section is added to prohibit prosecution of anyone who applies for a residential mortgage loan who intends to occupy the residential property unless the individual acts as an accessory to the residential mortgage fraud. Minor technical amendments are made, as well.
FOOTNOTES
35 Real Property Law § 265-b(2)(b)(1)(e)(i).
36 Real Property Law § 265-b(2)(b)(1)(e)(vii)."
Thursday, March 25, 2010
MORTGAGE FORECLOSURE
From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:
"Duty to Maintain Foreclosed Properties (adds RPAPL § 1307)
Duty and rights: Effective April 14, 2010, a plaintiff who obtains a judgment of foreclosure and sale involving residential real property that is vacant, or becomes vacant post-judgment, or is abandoned by the mortgagor but occupied by a tenant, 27 must maintain the property until ownership is transferred (either through the closing of title in foreclosure, or otherwise) and the deed is recorded. “Maintain” means keeping the property in compliance with specified provisions of Chapter 3 of Property Maintenance Code of New York State, 28 and if occupied by a tenant, in a safe and habitable condition.
The prevailing plaintiff in the foreclosure has the right under this section to peaceably enter the property for the purposes of inspections, repairs and maintenance, or as otherwise provided by court. If a tenant occupies the property, the plaintiff must give the tenant seven days notice unless emergency repairs are needed.
The requirements do not apply if the mortgagor is in bankruptcy, unless an order lifting or removing the automatic stay of the foreclosure sale has been issued, or if a receiver of such property is serving. This section also does not apply to municipal and governmental agencies if they hold a mortgage subordinate to one or more mortgages on the property.
Remedies: The law specifically gives the municipality in which the property is located, a tenant lawfully in possession, and a condominium board of managers or homeowners association (if such premise is subject to rules and regulations of an association), a right of action to enforce this duty in court, after seven days notice to the plaintiff. Damages can include costs incurred to maintain the property. Nothing in this section extinguishes or diminishes in any way existing obligations to maintain, or liabilities for failure to do so, of the mortgagor, or a receiver of rents and profits appointed in an action to foreclose a mortgage, to maintain the property. 29
FOOTNOTES
27 See footnote 25 for definition of “tenant.” RPAPL § 1305.
28 Specifically, the law requires the property be maintained pursuant to NY property maintenance Code Chapter 3, sections 301, 302 (excluding 302.2, 302.6 and 302.8), 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1, and 308.1. RPAPL § 1307(5).
29 Id. at § 1307(3)."
"Duty to Maintain Foreclosed Properties (adds RPAPL § 1307)
Duty and rights: Effective April 14, 2010, a plaintiff who obtains a judgment of foreclosure and sale involving residential real property that is vacant, or becomes vacant post-judgment, or is abandoned by the mortgagor but occupied by a tenant, 27 must maintain the property until ownership is transferred (either through the closing of title in foreclosure, or otherwise) and the deed is recorded. “Maintain” means keeping the property in compliance with specified provisions of Chapter 3 of Property Maintenance Code of New York State, 28 and if occupied by a tenant, in a safe and habitable condition.
The prevailing plaintiff in the foreclosure has the right under this section to peaceably enter the property for the purposes of inspections, repairs and maintenance, or as otherwise provided by court. If a tenant occupies the property, the plaintiff must give the tenant seven days notice unless emergency repairs are needed.
The requirements do not apply if the mortgagor is in bankruptcy, unless an order lifting or removing the automatic stay of the foreclosure sale has been issued, or if a receiver of such property is serving. This section also does not apply to municipal and governmental agencies if they hold a mortgage subordinate to one or more mortgages on the property.
Remedies: The law specifically gives the municipality in which the property is located, a tenant lawfully in possession, and a condominium board of managers or homeowners association (if such premise is subject to rules and regulations of an association), a right of action to enforce this duty in court, after seven days notice to the plaintiff. Damages can include costs incurred to maintain the property. Nothing in this section extinguishes or diminishes in any way existing obligations to maintain, or liabilities for failure to do so, of the mortgagor, or a receiver of rents and profits appointed in an action to foreclose a mortgage, to maintain the property. 29
FOOTNOTES
27 See footnote 25 for definition of “tenant.” RPAPL § 1305.
28 Specifically, the law requires the property be maintained pursuant to NY property maintenance Code Chapter 3, sections 301, 302 (excluding 302.2, 302.6 and 302.8), 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1, and 308.1. RPAPL § 1307(5).
29 Id. at § 1307(3)."
Wednesday, March 24, 2010
MORTGAGE FORECLOSURE - LANDLORD & TENANT RULES
From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:
"Provisions to Help Tenants in Foreclosed Properties
Notice to tenants within 10 days of serving foreclosure on mortgagor (amends RPAPL §1303): Effective January 14, 2010, the foreclosing party must deliver a notice, prescribed by the law, to tenants within ten (10) days of the service of the summons and complaint to the mortgagor. 24 The notice must be on colored paper and on its own page, and informs the tenant that the building where their apartment is located is subject to a foreclosure proceeding, and that they may have the right to stay in occupancy for the remainder of their lease term, of if they have no written lease, for ninety days after they are informed of the name and contact information for the new owner by the person or entity who takes title (the “successor in interest”), and advised of their rights under the new RPAPL §1305. Tenants in 1 to 4 unit buildings must be sent the notice individually by first-class mail to the tenant’s address at the property if the tenant’s identity is known to the plaintiff, or to “occupant” if the identity is not known. For buildings with five or more dwelling units, the notice must be posted outside each exit and entrance.
Limited right of continued occupancy and notice thereof (adds RPAPL § 1305): Tenants 25 in properties in foreclosure are granted the right to remain in the property for ninety (90) days from the date they receive a notice from a successor in interest in the property, or until the end of their lease, whichever is greater. An exception exists that limits a tenant’s right of occupancy to ninety (90) days (for a single unit) if the successor in interest who acquires title intends to occupy a single unit as his or her primary residence and if the unit is not subject to a federal or state statutory system of subsidy or other federal or state statutory scheme. An owner of the residential real property is specifically excluded from the protections of this section. Tenancy continues under same terms and conditions of lease as were in effect at time of entry of judgment, or transfer of ownership including the obligation to pay “fair market rent,” defined as “rent for a unit of residential real property of similar size, location and condition.” 26
Any successor in interest must send a written notice to all tenants informing them of their rights, as well as the name and address of the new owner. Anyone who becomes a successor in interest subsequent to the sending of the 90 day notice must provide tenants with its name and address. The provision does not affect the successor’s right to evict a tenant, as provided for in law (after the greater of the expiration of the 90 day time period or at the end of the lease term), or earlier if the tenant does not pay rent pursuant to the lease.
The law specifically states that these rights are in addition to any other rights of a tenant under law, including rights of tenants not named in foreclosure actions, rights of tenants whose tenancy is subsidized by a government entity, or the rights of tenants whose tenancy is subject to rent control, rent stabilization or federal statutory schemes.
This section applies to actions in which the judgment of foreclosure and sale (under RPAPL §1351) is issued on or after January 14, 2009.
FOOTNOTES
24 The notice is available on Empire Justice Center’s website at www.empirejustice.org.
25 “Tenant” is defined as any person who at the time the notice required by RPAPL § 1303(4) appears as a lessee on a lease of one or more dwelling units of a residential real property that is subordinate to the mortgage on such residential real property; or who at such time is a party to an oral or implied rental agreement with the mortgagor and obligated to pay rent to the mortgagor or such mortgagor’s representative, for the use or occupancy of one or more dwelling units of a residential real property. RPAPL § 1305(1)(c). The lease must also require payment of rent that is not substantially less than the fair market rent for the unit, unless the unit is subject to federal or state statutory system of subsidy or other federal or state statutory scheme. A tenant may not be the owner of the residential real property. RPAPL § 1305(2).
26 RPAPL § 1305(2)."
"Provisions to Help Tenants in Foreclosed Properties
Notice to tenants within 10 days of serving foreclosure on mortgagor (amends RPAPL §1303): Effective January 14, 2010, the foreclosing party must deliver a notice, prescribed by the law, to tenants within ten (10) days of the service of the summons and complaint to the mortgagor. 24 The notice must be on colored paper and on its own page, and informs the tenant that the building where their apartment is located is subject to a foreclosure proceeding, and that they may have the right to stay in occupancy for the remainder of their lease term, of if they have no written lease, for ninety days after they are informed of the name and contact information for the new owner by the person or entity who takes title (the “successor in interest”), and advised of their rights under the new RPAPL §1305. Tenants in 1 to 4 unit buildings must be sent the notice individually by first-class mail to the tenant’s address at the property if the tenant’s identity is known to the plaintiff, or to “occupant” if the identity is not known. For buildings with five or more dwelling units, the notice must be posted outside each exit and entrance.
Limited right of continued occupancy and notice thereof (adds RPAPL § 1305): Tenants 25 in properties in foreclosure are granted the right to remain in the property for ninety (90) days from the date they receive a notice from a successor in interest in the property, or until the end of their lease, whichever is greater. An exception exists that limits a tenant’s right of occupancy to ninety (90) days (for a single unit) if the successor in interest who acquires title intends to occupy a single unit as his or her primary residence and if the unit is not subject to a federal or state statutory system of subsidy or other federal or state statutory scheme. An owner of the residential real property is specifically excluded from the protections of this section. Tenancy continues under same terms and conditions of lease as were in effect at time of entry of judgment, or transfer of ownership including the obligation to pay “fair market rent,” defined as “rent for a unit of residential real property of similar size, location and condition.” 26
Any successor in interest must send a written notice to all tenants informing them of their rights, as well as the name and address of the new owner. Anyone who becomes a successor in interest subsequent to the sending of the 90 day notice must provide tenants with its name and address. The provision does not affect the successor’s right to evict a tenant, as provided for in law (after the greater of the expiration of the 90 day time period or at the end of the lease term), or earlier if the tenant does not pay rent pursuant to the lease.
The law specifically states that these rights are in addition to any other rights of a tenant under law, including rights of tenants not named in foreclosure actions, rights of tenants whose tenancy is subsidized by a government entity, or the rights of tenants whose tenancy is subject to rent control, rent stabilization or federal statutory schemes.
This section applies to actions in which the judgment of foreclosure and sale (under RPAPL §1351) is issued on or after January 14, 2009.
FOOTNOTES
24 The notice is available on Empire Justice Center’s website at www.empirejustice.org.
25 “Tenant” is defined as any person who at the time the notice required by RPAPL § 1303(4) appears as a lessee on a lease of one or more dwelling units of a residential real property that is subordinate to the mortgage on such residential real property; or who at such time is a party to an oral or implied rental agreement with the mortgagor and obligated to pay rent to the mortgagor or such mortgagor’s representative, for the use or occupancy of one or more dwelling units of a residential real property. RPAPL § 1305(1)(c). The lease must also require payment of rent that is not substantially less than the fair market rent for the unit, unless the unit is subject to federal or state statutory system of subsidy or other federal or state statutory scheme. A tenant may not be the owner of the residential real property. RPAPL § 1305(2).
26 RPAPL § 1305(2)."
Tuesday, March 23, 2010
MORTGAGE FORECLOSURE
From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:
"Mandatory Settlement Conferences
Conferences extended to all (amends CPLR 3408(a)): Effective February 13, 2010,13 the law extends the requirement for courts to hold a mandatory settlement conference to all borrowers with home loans 14 in which the defendant resides in the property (not just those with “high-cost,” “subprime” or “nontraditional” home loans as initially established in the 2008 Act). The conference must be held within 60 days from the date when proof of service is filed with the clerk, or on such adjourned date as agreed to by the parties.
Pending foreclosure actions: In pending foreclosure actions on home loans (that are not “high-cost,” or “subprime,” already subject to a mandatory settlement conference requirement) where the final order of judgment has not been rendered as of effective date of the conferences, the court shall notify the defendant that they have a right to request a settlement conference.
New requirements (adds CPLR 3408(d), (e), (f), (g), and (h)): Though the stated purpose of holding settlement discussions remains the same, 15 a requirement has been added that the parties “shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.” 16 Another new provision prohibits either party from charging the other for any cost, including attorneys’ fees, for participation in the settlement conferences. 17 Plaintiffs are also newly required to file a notice of discontinuance and vacatur of lis pendens within 150 days after a settlement agreement or loan modification is executed. 18
Two additional requirements pertain to the courts. First, the court must “promptly” send a notice to both parties advising them of the time, place and purpose of the conference, and advising them of the documents they should bring. 19 The notice should be in a form prescribed by the Office of Court Administration (OCA), or by the administrative judge of the judicial district (at OCA’s discretion). Second, the court must send either a copy of the request for judicial intervention (RJI) or contact information for the defendant to housing counseling agencies designated by DHCR in the judicial district so that they may inform the homeowner of foreclosure prevention services and options available to them. 20
These provisions also are effective February 13, 2010.
OCA rulemaking and reporting: Within 90 days of the enactment of this legislation, OCA must promulgate rules to ensure the “just and expeditious processing of settlement conferences.” 21 Such rules shall provide those overseeing conferences the necessary authority to make sure the law is followed and the parties negotiate in good faith, including allowing OCA the ability to grant additional authority to courts to sanction egregious behavior. OCA is required to make annual reports (on November 1) to the governor and prescribed members of the legislature regarding the effectiveness of the settlement conferences.22
Other provisions remain the same: The ability of the court to appoint counsel in a case in which a defendant appears at the conference pro se, and the requirement that the plaintiff appear in person or by a representative with authority to settle the case either in person or by phone, remain the same. 23
FOOTNOTES:
13 The mandatory settlement conference provision sunsets five years from the effective date.
14 See footnote 5 for definition of “home loan” (RPAPL § 1304).
15 Settlement conference shall be held “for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agree to, and for whatever other purposes the court deems appropriate.” CPLR 3408(a).
16 CPLR 3408(f).
17 CPLR 3408(h).
18 CPLR 3408(g).
19 For plaintiff, such documents should include at least the payment history, an itemization of the cure and payoff amounts, the mortgage and the note; the defendant should be instructed to bring at least proof of income including most recent pay stubs, tax return, and property tax statements. The law also states that “If the plaintiff is not the owner of the mortgage and note, the plaintiff shall provide the name, address and telephone number of the legal owner of the mortgage and note.” CPLR 3408(e). This does not change any requirement already provided under law that the plaintiff be the legal owner and holder of the mortgage and note.
20 CPLR 3408(d).
21 Chapter 507 of the Laws of New York, 2009, sec.10-a(1).
22 Information to be collected by OCA and reported on includes “the number of adjournments, defaults, discontinuances, dismissals, conferences held, and defendants appearing with and without counsel.” Id. at sec.10-a(2).
23 See CPLR 3408"
"Mandatory Settlement Conferences
Conferences extended to all (amends CPLR 3408(a)): Effective February 13, 2010,13 the law extends the requirement for courts to hold a mandatory settlement conference to all borrowers with home loans 14 in which the defendant resides in the property (not just those with “high-cost,” “subprime” or “nontraditional” home loans as initially established in the 2008 Act). The conference must be held within 60 days from the date when proof of service is filed with the clerk, or on such adjourned date as agreed to by the parties.
Pending foreclosure actions: In pending foreclosure actions on home loans (that are not “high-cost,” or “subprime,” already subject to a mandatory settlement conference requirement) where the final order of judgment has not been rendered as of effective date of the conferences, the court shall notify the defendant that they have a right to request a settlement conference.
New requirements (adds CPLR 3408(d), (e), (f), (g), and (h)): Though the stated purpose of holding settlement discussions remains the same, 15 a requirement has been added that the parties “shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.” 16 Another new provision prohibits either party from charging the other for any cost, including attorneys’ fees, for participation in the settlement conferences. 17 Plaintiffs are also newly required to file a notice of discontinuance and vacatur of lis pendens within 150 days after a settlement agreement or loan modification is executed. 18
Two additional requirements pertain to the courts. First, the court must “promptly” send a notice to both parties advising them of the time, place and purpose of the conference, and advising them of the documents they should bring. 19 The notice should be in a form prescribed by the Office of Court Administration (OCA), or by the administrative judge of the judicial district (at OCA’s discretion). Second, the court must send either a copy of the request for judicial intervention (RJI) or contact information for the defendant to housing counseling agencies designated by DHCR in the judicial district so that they may inform the homeowner of foreclosure prevention services and options available to them. 20
These provisions also are effective February 13, 2010.
OCA rulemaking and reporting: Within 90 days of the enactment of this legislation, OCA must promulgate rules to ensure the “just and expeditious processing of settlement conferences.” 21 Such rules shall provide those overseeing conferences the necessary authority to make sure the law is followed and the parties negotiate in good faith, including allowing OCA the ability to grant additional authority to courts to sanction egregious behavior. OCA is required to make annual reports (on November 1) to the governor and prescribed members of the legislature regarding the effectiveness of the settlement conferences.22
Other provisions remain the same: The ability of the court to appoint counsel in a case in which a defendant appears at the conference pro se, and the requirement that the plaintiff appear in person or by a representative with authority to settle the case either in person or by phone, remain the same. 23
FOOTNOTES:
13 The mandatory settlement conference provision sunsets five years from the effective date.
14 See footnote 5 for definition of “home loan” (RPAPL § 1304).
15 Settlement conference shall be held “for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agree to, and for whatever other purposes the court deems appropriate.” CPLR 3408(a).
16 CPLR 3408(f).
17 CPLR 3408(h).
18 CPLR 3408(g).
19 For plaintiff, such documents should include at least the payment history, an itemization of the cure and payoff amounts, the mortgage and the note; the defendant should be instructed to bring at least proof of income including most recent pay stubs, tax return, and property tax statements. The law also states that “If the plaintiff is not the owner of the mortgage and note, the plaintiff shall provide the name, address and telephone number of the legal owner of the mortgage and note.” CPLR 3408(e). This does not change any requirement already provided under law that the plaintiff be the legal owner and holder of the mortgage and note.
20 CPLR 3408(d).
21 Chapter 507 of the Laws of New York, 2009, sec.10-a(1).
22 Information to be collected by OCA and reported on includes “the number of adjournments, defaults, discontinuances, dismissals, conferences held, and defendants appearing with and without counsel.” Id. at sec.10-a(2).
23 See CPLR 3408"
Monday, March 22, 2010
MORTGAGE FORECLOSURE
From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:
"The new law expands the requirement under RPAPL § 1304, providing that as of January 14, 2010, 3 a lender,4 assignee or a mortgage loan servicer must send a notice to all borrowers with a home loan 5 at least 90 days prior to the commencement of a legal action. (Previously, only borrowers with “high-cost,” “subprime” and “nontraditional” home loans had to be sent this notice. 6) A new provision requires the notice to be sent in a separate envelope from any other mailing or notice. The notice is the same as set forth in the Foreclosure Prevention and Responsible Lending Act of 2008 (“2008 Act”) and must be sent to the borrower by registered or certified mail, as well as by first-class mail, to the last known address of the borrower and if different, to the residence that is subject to the mortgage. The date the notice is mailed is the date that the notice is considered to be given.
Specific and personalized information required: The exact language required for the notice is set forth in the law. 7 The notice must be in fourteen-point font and must state that as of a specific date, the home loan is “X” number of days in default and that the homeowner is at risk of losing their home. The notice must also state that the homeowner can save their home by making a payment of “X” amount of dollars by a specific date, or may consider another option if they are having financial difficulty. The notice must set forth the telephone number of the lender or mortgage servicer, where the homeowner can contact them directly. The notice also must inform the borrower that it will be more beneficial to take immediate action as it is probable that there will be fewer options available the longer the homeowner waits. If the matter is not resolved in 90 days the lender or mortgage servicer can take action against the homeowner, or sooner, if the property is no longer the mortgagor’s primary residence.
Referrals to specified counseling services: One of the primary purposes of the notice is to refer borrowers to agencies that assist homeowners in doing work-outs with lenders, whether it be a loan modification, an easier payment plan, or a period of loan forbearance. The Division of Housing and Community Renewal and the Banking Department must make available on their websites the listing by region of such agencies. The lender or mortgage servicer must attach a list of at least five government approved housing counseling agencies in the homeowner’s geographic region that provide free or low-cost counseling. 8 The notice must also direct the homeowner to call the Banking Department’s Toll-Free Helpline or go to their website for more information.
Exemptions from the notice requirement: The 90-day period does not apply to mortgagors in bankruptcy, or if the borrower does not occupy that residence as their principal dwelling. The notice and the ninety-day period must be provided only once per year to the same borrower for the same loan.
Remedies: A defendant may raise a violation of this section as a defense to a foreclosure action
Footnotes
3 The 90 day notice provision sunsets five years from the effective date.
4 “Lender” means a mortgage banker as defined in Banking Law § 590.1(f) or an exempt organization as defined is Banking Law § 590.1(e). Private lenders who make under five mortgage loans in a year are not obligated to obtain a license under Banking Law § 590.1 to be a mortgage banker.
5 “Home loan” is defined as a loan, including an open-end credit plan in which the borrower is a natural person, the debt is incurred primarily for personal family, or household purposes, and the loan is secured by a mortgage or deed of trust on real estate improved by a one to four family dwelling, or a condominium unit, to be used or intended to be used or occupied wholly or partly, as the home or residence of one or more persons and which is or will be occupied by the borrower as their principal dwelling, but does not include a reverse mortgage transaction. RPAPL § 1304(5)(a).
6 Definitions for “subprime” and “nontraditional” home loans were removed from this section. The 2008 Act referenced the definition of “high-cost” home loans as set forth in Banking Law § 6-l for purposes of this section and therefore, the definition of “high-cost” home loan was not removed.
7 The notice is available on Empire Justice Center’s website at.
8 Agencies will include U.S. Dept of Housing and Urban Dev. Approved Housing Counseling Agencies or other such agencies as designated by the division of Housing and Community Renewal (DHCR). The list is provided to lenders by the NYS Banking Department and DHCR, available at.
"The new law expands the requirement under RPAPL § 1304, providing that as of January 14, 2010, 3 a lender,4 assignee or a mortgage loan servicer must send a notice to all borrowers with a home loan 5 at least 90 days prior to the commencement of a legal action. (Previously, only borrowers with “high-cost,” “subprime” and “nontraditional” home loans had to be sent this notice. 6) A new provision requires the notice to be sent in a separate envelope from any other mailing or notice. The notice is the same as set forth in the Foreclosure Prevention and Responsible Lending Act of 2008 (“2008 Act”) and must be sent to the borrower by registered or certified mail, as well as by first-class mail, to the last known address of the borrower and if different, to the residence that is subject to the mortgage. The date the notice is mailed is the date that the notice is considered to be given.
Specific and personalized information required: The exact language required for the notice is set forth in the law. 7 The notice must be in fourteen-point font and must state that as of a specific date, the home loan is “X” number of days in default and that the homeowner is at risk of losing their home. The notice must also state that the homeowner can save their home by making a payment of “X” amount of dollars by a specific date, or may consider another option if they are having financial difficulty. The notice must set forth the telephone number of the lender or mortgage servicer, where the homeowner can contact them directly. The notice also must inform the borrower that it will be more beneficial to take immediate action as it is probable that there will be fewer options available the longer the homeowner waits. If the matter is not resolved in 90 days the lender or mortgage servicer can take action against the homeowner, or sooner, if the property is no longer the mortgagor’s primary residence.
Referrals to specified counseling services: One of the primary purposes of the notice is to refer borrowers to agencies that assist homeowners in doing work-outs with lenders, whether it be a loan modification, an easier payment plan, or a period of loan forbearance. The Division of Housing and Community Renewal and the Banking Department must make available on their websites the listing by region of such agencies. The lender or mortgage servicer must attach a list of at least five government approved housing counseling agencies in the homeowner’s geographic region that provide free or low-cost counseling. 8 The notice must also direct the homeowner to call the Banking Department’s Toll-Free Helpline or go to their website for more information.
Exemptions from the notice requirement: The 90-day period does not apply to mortgagors in bankruptcy, or if the borrower does not occupy that residence as their principal dwelling. The notice and the ninety-day period must be provided only once per year to the same borrower for the same loan.
Remedies: A defendant may raise a violation of this section as a defense to a foreclosure action
Footnotes
3 The 90 day notice provision sunsets five years from the effective date.
4 “Lender” means a mortgage banker as defined in Banking Law § 590.1(f) or an exempt organization as defined is Banking Law § 590.1(e). Private lenders who make under five mortgage loans in a year are not obligated to obtain a license under Banking Law § 590.1 to be a mortgage banker.
5 “Home loan” is defined as a loan, including an open-end credit plan in which the borrower is a natural person, the debt is incurred primarily for personal family, or household purposes, and the loan is secured by a mortgage or deed of trust on real estate improved by a one to four family dwelling, or a condominium unit, to be used or intended to be used or occupied wholly or partly, as the home or residence of one or more persons and which is or will be occupied by the borrower as their principal dwelling, but does not include a reverse mortgage transaction. RPAPL § 1304(5)(a).
6 Definitions for “subprime” and “nontraditional” home loans were removed from this section. The 2008 Act referenced the definition of “high-cost” home loans as set forth in Banking Law § 6-l for purposes of this section and therefore, the definition of “high-cost” home loan was not removed.
7 The notice is available on Empire Justice Center’s website at
8 Agencies will include U.S. Dept of Housing and Urban Dev. Approved Housing Counseling Agencies or other such agencies as designated by the division of Housing and Community Renewal (DHCR). The list is provided to lenders by the NYS Banking Department and DHCR, available at
Sunday, March 21, 2010
MORTGAGE FORECLOSURE - VOLUNTARY ATTORNEY PROGRAM
Another reposting from the Nassau County Bar Association - a call for more Spanish or Creole speaking volunteer lawyers at the mandatory settlement conferences and or clinics:
"Attorneys who speak Spanish or Creole are needed as volunteers for our free Mortgage Foreclosure Consultation Clinics at NCBA. We would like to have two Spanish-speaking volunteers for the next Consultation Clinic on April 12, 3:00 to 6:00 p.m. Homeowners not fluent in English have difficulty in communicating the details of their situation and in understanding recommendations of English-speaking attorneys. If you can assist in this vital service the Association offers to homeowners in distress, please contact Caryle Katz, ckatz@nassaubar.org to sign up for the April 12 Clinic, or for additional information. If you are unfamiliar with foreclosure law, you will have the opportunity to observe another attorney’s consultations to help you understand the procedure."
"Attorneys who speak Spanish or Creole are needed as volunteers for our free Mortgage Foreclosure Consultation Clinics at NCBA. We would like to have two Spanish-speaking volunteers for the next Consultation Clinic on April 12, 3:00 to 6:00 p.m. Homeowners not fluent in English have difficulty in communicating the details of their situation and in understanding recommendations of English-speaking attorneys. If you can assist in this vital service the Association offers to homeowners in distress, please contact Caryle Katz, ckatz@nassaubar.org to sign up for the April 12 Clinic, or for additional information. If you are unfamiliar with foreclosure law, you will have the opportunity to observe another attorney’s consultations to help you understand the procedure."
Saturday, March 20, 2010
MORTGAGE FORECLOSURE - VOLUNTARY ATTORNEY PROGRAM
I am reposting portions of an email from the Nassau County Bar Association - a call for more volunteer lawyers at the madatory settlement conferences (a training seminar was held on Thursday):
"It was a long program last night, packed with information which I hope you have since been able to digest and absorb. Now it’s time to put that knowledge to good use by volunteering to represent homeowners at a morning or afternoon session at the Supreme Court settlement conferences, which are held daily. Volunteers have no obligation to represent the homeowners beyond the period of the settlement conference; you are not expected to take them on as a pro bono case.
The other option is to volunteer to give individual consultations at a mortgage foreclosure consultation clinic, which we hold each month in the Lecture Room at Domus. Five attorneys are needed each month, and newcomers are welcome to sign up to sit with an experienced consulting attorney to observe and learn the procedure.
......
Bear in mind that the need is very great. The number of homeowners threatened with the loss of their homes grows daily, with no end in sight for the immediate future. We must do what we can to help those who are unable to help themselves. It’s up to people of good conscience to reach out a helping hand to them, and we’re counting on you to be one of those good people."
"It was a long program last night, packed with information which I hope you have since been able to digest and absorb. Now it’s time to put that knowledge to good use by volunteering to represent homeowners at a morning or afternoon session at the Supreme Court settlement conferences, which are held daily. Volunteers have no obligation to represent the homeowners beyond the period of the settlement conference; you are not expected to take them on as a pro bono case.
The other option is to volunteer to give individual consultations at a mortgage foreclosure consultation clinic, which we hold each month in the Lecture Room at Domus. Five attorneys are needed each month, and newcomers are welcome to sign up to sit with an experienced consulting attorney to observe and learn the procedure.
......
Bear in mind that the need is very great. The number of homeowners threatened with the loss of their homes grows daily, with no end in sight for the immediate future. We must do what we can to help those who are unable to help themselves. It’s up to people of good conscience to reach out a helping hand to them, and we’re counting on you to be one of those good people."
Friday, March 19, 2010
MORTGAGE FORECLOSURE
Yesterday I attended a mortgage foreclosure seminar at the Nassau County Bar Association. As if many in the area didn't know, the highest number of mortgage foreclosure filings are in Long Island, including Queens and Brooklyn, and there is a large number beginning in the Hudson Valley area.
Thursday, March 18, 2010
DIVORCE - NY CHILD SUPPORT MODERNIZATION ACT
From Lawyers.com:
"There's a change in how child support is calculated in New York. The New York Child Support Modernization Act, starting January 31, 2010, changes the income range and formula used in figuring child support. The change means set rules apply when parents' incomes are up to $130,000. This number will adjust every two years, based on the Consumer Price index.
Three-Step Method for Determining Support
New York follows a three-step method for determining child support. First, the court adds up parents' combined income. Second, the combined income is multiplied by a certain percentage based on the number of children. For example, the combined income is multiplied by 17% if there's one child. Third, the court decides how much each parent pays for child support, based on each one's share of income.
Courts consider other factors besides combined income in setting child support. These factors include:
•Child's health and special needs
•Child's standard of living had parents stayed married
•Tax consequences
•Parents non-monetary contributions to the child
•Parents' educational needs
•Differences in parents' incomes
•Parents' children from other relationships and their support needs
•Out-of-the-ordinary visitation expenses
•Any other factors the court sees as important
Judges and magistrates have discretion in deciding support, and how they use the factors and methods above. However, a judge must explain his decision.
Impact of the New Law
The new law gives greater guidance given the new combined income cap amount - $130,000. It's expected more parents will use the new law and seek to update child support due to the income limit change. One purpose for the new law is to ensure that children receive sufficient support.
Questions for Your Attorney
•Is the change in the law a proper ground to ask for an increase in child support?
•Will the calculation of child support consider the income of someone who lives with me, such as a spouse if I remarry?
•How is the combined parental income determined?"
"There's a change in how child support is calculated in New York. The New York Child Support Modernization Act, starting January 31, 2010, changes the income range and formula used in figuring child support. The change means set rules apply when parents' incomes are up to $130,000. This number will adjust every two years, based on the Consumer Price index.
Three-Step Method for Determining Support
New York follows a three-step method for determining child support. First, the court adds up parents' combined income. Second, the combined income is multiplied by a certain percentage based on the number of children. For example, the combined income is multiplied by 17% if there's one child. Third, the court decides how much each parent pays for child support, based on each one's share of income.
Courts consider other factors besides combined income in setting child support. These factors include:
•Child's health and special needs
•Child's standard of living had parents stayed married
•Tax consequences
•Parents non-monetary contributions to the child
•Parents' educational needs
•Differences in parents' incomes
•Parents' children from other relationships and their support needs
•Out-of-the-ordinary visitation expenses
•Any other factors the court sees as important
Judges and magistrates have discretion in deciding support, and how they use the factors and methods above. However, a judge must explain his decision.
Impact of the New Law
The new law gives greater guidance given the new combined income cap amount - $130,000. It's expected more parents will use the new law and seek to update child support due to the income limit change. One purpose for the new law is to ensure that children receive sufficient support.
Questions for Your Attorney
•Is the change in the law a proper ground to ask for an increase in child support?
•Will the calculation of child support consider the income of someone who lives with me, such as a spouse if I remarry?
•How is the combined parental income determined?"
Wednesday, March 17, 2010
CHARITIES - PERSONAL LIABILITY OF DIRECTORS
My first legal job was as a summer intern with the Attorney General's Charities Bureau, which is responsible for supervising charitable organizations to protect donors and beneficiaries of those charities from unscrupulous practices in the solicitation and management of charitable assets. My work involved, in part, investigating the improper activities of executors, administrators, trustees and personal representatives responsible for honoring gifts or bequests to a charity, even though those executors, etc. served without pay. So volunteers beware. Even an individual can attempt to take action against the charity, and the volunteer executors, etc., as illustrated in the recent case of JOHNSON v. BLACK EQUITY ALLIANCE, 106797/09 2010 NY Slip Op 50178(U) (Supreme Court of the State of New York, New York County, Decided January 21, 2010) but here the attempt to get personal liability failed:
"Unpaid directors are immune from suit under the New York Not-For-Profit Corporation Law (N-PCL) § 720-a and CPLR (a) (11), absent allegations of their gross negligence or intention to cause harm. Thus, as to plaintiff's causes of action alleged against the individual directors, they are properly dismissed (see Pontarelli v Shapero, , [1st Dept 1996]). "On a CPLR (a) (11) motion, Supreme Court is obligated to determine whether the defendant is entitled to the benefits conferred by N-PCL and, if it so finds, then it must ascertain whether there is a reasonable probability that the specific conduct of the defendant fell outside the protective shield afforded by N-PCL [citation1 omitted]" (see Martin v Columbia Greene Humane Society, Inc., , [3d Dept 2005]). The Individual Defendants all serve as directors of Black Equity without compensation for their directorial services, and it is undisputed that Black Equity is a charitable organization that is tax exempt pursuant to section (c) (3) of the Internal Revenue Code. In her opposition, plaintiff asserts that defendant Cheryle A. Wills (Wills) receives compensation from Black Equity; however, Wills' compensation is not based on her service as a director, but is paid pursuant to a separate consulting contract with Black Equity, by which she is engaged to develop a business plan for potential funding sources. Plaintiff does not allege that any of the other directors receive compensation, but contends that since they receive certain perquisites, such as Black Equity paying for their attendance at various events, they should not be considered to fall within the protective umbrella of N-PCL § . The legislative intent of section of the N-PCL is "to curtail litigation against persons engaged in nonpaid charitable activities . . ." (see Rabushka v Marks, , [3d Dept 1996]). Here, the complaint alleges wrongdoing against Wills perpetrated in her capacity as a nonpaid director of Black Equity, not in her role as a compensated consultant. Moreover, plaintiff did not cite any case or statutory reference that the perquisites stated by plaintiff constitute the type of compensation that would take the Individual Defendants out of section of the N-PCL. Therefore, with respect to the Individual Defendants, the court finds that they are entitled to N-PCL § protection, provided that the actions complained of do not constitute gross negligence or intentional harm. In order to prevail against an assertion of immunity, the plaintiff must demonstrate a "reasonable probability" that the Individual Defendants' conduct constitutes either gross negligence or was intended to cause harm. Thome v The Alexander & Louisa Calder Foundation, ___ AD3d ___, 890 NYS2d 16 (1st Dept 2009). The conclusory averments of plaintiff appearing in her complaint and opposition papers fall far short of satisfying this burden (see Pontarelli v Shapero, 231 AD2d 407, supra )."
So in order for personal liability to be found against the unpaid volunteer directors, the court must find that the actions complained of constitute gross negligence or intentional harm.
"Unpaid directors are immune from suit under the New York Not-For-Profit Corporation Law (N-PCL) § 720-a and CPLR (a) (11), absent allegations of their gross negligence or intention to cause harm. Thus, as to plaintiff's causes of action alleged against the individual directors, they are properly dismissed (see Pontarelli v Shapero, , [1st Dept 1996]). "On a CPLR (a) (11) motion, Supreme Court is obligated to determine whether the defendant is entitled to the benefits conferred by N-PCL and, if it so finds, then it must ascertain whether there is a reasonable probability that the specific conduct of the defendant fell outside the protective shield afforded by N-PCL [citation1 omitted]" (see Martin v Columbia Greene Humane Society, Inc., , [3d Dept 2005]). The Individual Defendants all serve as directors of Black Equity without compensation for their directorial services, and it is undisputed that Black Equity is a charitable organization that is tax exempt pursuant to section (c) (3) of the Internal Revenue Code. In her opposition, plaintiff asserts that defendant Cheryle A. Wills (Wills) receives compensation from Black Equity; however, Wills' compensation is not based on her service as a director, but is paid pursuant to a separate consulting contract with Black Equity, by which she is engaged to develop a business plan for potential funding sources. Plaintiff does not allege that any of the other directors receive compensation, but contends that since they receive certain perquisites, such as Black Equity paying for their attendance at various events, they should not be considered to fall within the protective umbrella of N-PCL § . The legislative intent of section of the N-PCL is "to curtail litigation against persons engaged in nonpaid charitable activities . . ." (see Rabushka v Marks, , [3d Dept 1996]). Here, the complaint alleges wrongdoing against Wills perpetrated in her capacity as a nonpaid director of Black Equity, not in her role as a compensated consultant. Moreover, plaintiff did not cite any case or statutory reference that the perquisites stated by plaintiff constitute the type of compensation that would take the Individual Defendants out of section of the N-PCL. Therefore, with respect to the Individual Defendants, the court finds that they are entitled to N-PCL § protection, provided that the actions complained of do not constitute gross negligence or intentional harm. In order to prevail against an assertion of immunity, the plaintiff must demonstrate a "reasonable probability" that the Individual Defendants' conduct constitutes either gross negligence or was intended to cause harm. Thome v The Alexander & Louisa Calder Foundation, ___ AD3d ___, 890 NYS2d 16 (1st Dept 2009). The conclusory averments of plaintiff appearing in her complaint and opposition papers fall far short of satisfying this burden (see Pontarelli v Shapero, 231 AD2d 407, supra )."
So in order for personal liability to be found against the unpaid volunteer directors, the court must find that the actions complained of constitute gross negligence or intentional harm.
Tuesday, March 16, 2010
CELL PHONES
A recent consultation regarding an unemployment insurance matter revealed that the issue could be easily resolved in the Claimant's favor if the Claimant had taken a certain photograph with the Claimant's cell phone; however, the Claimant explained that the cell phone was an old one without a phone. With respect to certain matters, especially automobile and other property damage, it is best to have a camera on hand in your cell phone. Video with sound may also be useful in various matters, especially with certain matrimonial issues. I suggest all to have one but also beware as the following article from totallawyers.com illustrates:
"These days, you can't walk down the street without seeing people chatting away on their cell phones, text messaging, or snapping a camera phone picture of a friend. But did you know that cell phones have also become an important part of criminal investigations?
Criminals and police are finding that cell phones can provide valuable evidence-and heated controversy-in some criminal cases.
NPR News reports the story of one Colorado high school where students' cell phones were seized and searched. School officials found mentions of marijuana use amid some of the text messages, but legal experts question whether the searches were lawful.
Some information discovered in the cell phone raid reportedly entered the students' discipline files, but the administrators' actions have met with much controversy. One student allegedly smashed her cell phone rather than subject it to a search she believed was inappropriate.
In New Jersey, police officers undergo rigorous training sessions to learn how to extract information from the hard drive of cell phones, according to NJ.com. Though computer-based information extraction procedures have been in place for years, cell phone investigations are fairly new.
Perhaps one of the most surprising facts about the role of cell phones in criminal law is how often suspects incriminate themselves with evidence from their phones.
The Wall Street Journal highlights the case of Morgan Kipper, a man who insisted he was innocent after being arrested for stealing cars and reselling their parts.
Apparently, when police got their hands of Kipper's camera phone, they found that the wallpaper background was a picture of Kipper in the driver's seat of a stolen Ferrari. After that, his criminal defense lawyer had a tougher time with the case.
Sources suggest that ordinary cell phone users don't realize how much information investigators can glean from cell phones-even messages and photos that have been deleted are stored on a phone's hard drive.
And, with all the new features cell phones have these days (including text messaging options, camera capabilities and video recording devices), police have a greater chance than ever of finding something incriminating for an investigation.
Software companies, too, have become aware of the trend. Vendors are pitching to investigators programs that help download phones' hard drives, sources report.
So how vulnerable is your phone information?
According to reports, police must get a warrant to search cell phone information, but some criminals post photos and videos on the Internet, making such warrants unnecessary.
Experts have commented that cell phones can be trickier to get information from than computers, because so many models of cell phones are out there. But, since most people never leave home without their cells, chances are good that evidence of a crime (if a crime was committed) will be somewhere in a phone.
The moral of the story? Experts suggest not texting anything you wouldn't want to see in a newspaper headline. Oh, and if you commit a crime, don't snap an image of yourself doing it."
"These days, you can't walk down the street without seeing people chatting away on their cell phones, text messaging, or snapping a camera phone picture of a friend. But did you know that cell phones have also become an important part of criminal investigations?
Criminals and police are finding that cell phones can provide valuable evidence-and heated controversy-in some criminal cases.
NPR News reports the story of one Colorado high school where students' cell phones were seized and searched. School officials found mentions of marijuana use amid some of the text messages, but legal experts question whether the searches were lawful.
Some information discovered in the cell phone raid reportedly entered the students' discipline files, but the administrators' actions have met with much controversy. One student allegedly smashed her cell phone rather than subject it to a search she believed was inappropriate.
In New Jersey, police officers undergo rigorous training sessions to learn how to extract information from the hard drive of cell phones, according to NJ.com. Though computer-based information extraction procedures have been in place for years, cell phone investigations are fairly new.
Perhaps one of the most surprising facts about the role of cell phones in criminal law is how often suspects incriminate themselves with evidence from their phones.
The Wall Street Journal highlights the case of Morgan Kipper, a man who insisted he was innocent after being arrested for stealing cars and reselling their parts.
Apparently, when police got their hands of Kipper's camera phone, they found that the wallpaper background was a picture of Kipper in the driver's seat of a stolen Ferrari. After that, his criminal defense lawyer had a tougher time with the case.
Sources suggest that ordinary cell phone users don't realize how much information investigators can glean from cell phones-even messages and photos that have been deleted are stored on a phone's hard drive.
And, with all the new features cell phones have these days (including text messaging options, camera capabilities and video recording devices), police have a greater chance than ever of finding something incriminating for an investigation.
Software companies, too, have become aware of the trend. Vendors are pitching to investigators programs that help download phones' hard drives, sources report.
So how vulnerable is your phone information?
According to reports, police must get a warrant to search cell phone information, but some criminals post photos and videos on the Internet, making such warrants unnecessary.
Experts have commented that cell phones can be trickier to get information from than computers, because so many models of cell phones are out there. But, since most people never leave home without their cells, chances are good that evidence of a crime (if a crime was committed) will be somewhere in a phone.
The moral of the story? Experts suggest not texting anything you wouldn't want to see in a newspaper headline. Oh, and if you commit a crime, don't snap an image of yourself doing it."
Monday, March 15, 2010
DIVORCE - CHILD SUPPORT
A recent consultation regarded a request to terminate child support payments under the following circumstances: Child was 20 years old and residing with neither parent and residing in another state. This is from the New York State Court Help FAQ:
"Q. How old does a child have to be before child support ends?
A. In most cases, 21. If a child is under 21 and is either married, self-supporting, or in the military, a parent doesn't have to pay child support.
Q. Is there any other reason why child support might end?
A. A child between 17 and 21 who has left home and refuses to obey parents' reasonable commands can be considered "emancipated" by a court. In that case, child support might not have to be paid."
"Q. How old does a child have to be before child support ends?
A. In most cases, 21. If a child is under 21 and is either married, self-supporting, or in the military, a parent doesn't have to pay child support.
Q. Is there any other reason why child support might end?
A. A child between 17 and 21 who has left home and refuses to obey parents' reasonable commands can be considered "emancipated" by a court. In that case, child support might not have to be paid."
Sunday, March 14, 2010
UNEMPLOYMENT INSURANCE - INDEPENDENT CONTRACTOR
An interesting consultation where it appeared that an employer, in order to avoid it's "workers" being considered as "employees", engaged in an elaborate set up involving stock ownership, partnership, various contracts, etc. in their position that it's "workers" are not "employees" under the Unemployment Insurance Law. My advice is to first contact the New York State Department of Labor at the address below. If you believe that some of your workers are independent contractors, of if you are a worker and are unsure of your status, ask the DOL's Liability and Determination Section for a formal determination by writing to the address below. Include a copy of any contract and details of the relationship between the parties.
New York State Department of Labor
Unemployment Insurance Division
Liability and Determination Section
P.O. Box 15122
State Office Building Campus
Albany, New York 12212-5122
Fax 518 485-6172
New York State Department of Labor
Unemployment Insurance Division
Liability and Determination Section
P.O. Box 15122
State Office Building Campus
Albany, New York 12212-5122
Fax 518 485-6172
Saturday, March 13, 2010
UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION
A recent consultation raised the issue of religious beliefs and separation from work. The general rule, according to the Appeals Board website, is that one's refusal to attend work or to perform tasks which would violate one's religious beliefs is not disqualifying, as per AB 452,775:
"The credible evidence establishes that the claimant voluntarily left her employment because the employer could not relieve her from having to serve birthday cakes to customers, which act would violate her religious beliefs. The claimant took reasonable steps to protect her employment by suggesting alternative arrangements to the employer but due to the employer's size the employer, acting in good faith, could not reasonably accommodate claimant's religious beliefs. In the absence of any compelling State interest justifying the infringement of religious liberties, the State cannot deny unemployment insurance benefits because of conduct mandated by religious belief. Accordingly, we conclude that the claimant voluntarily left her job with good cause."
The comments to this case state:
"1. Claimant in this case had advised the employer at the time of hire of her religious beliefs. Based on her beliefs, she would not perform specific tasks. When the employer advised her that it would no longer accommodate her restrictions, claimant quit her job with good cause.
2. In another case (AB 433,355, not published) claimant's continued refusal to work on Sundays because of his religious beliefs is not misconduct. Claimant need not document membership in an established religious sect to demonstrate a sincerely held religious belief.
3. See also A750-2017, regarding Refusal of Employment"
But issues can arise when the employee's religious beliefs are not explained at the time of hire, or have changed after hire. And if the employee quits, the employer may also allege incidents of misconduct that led to the voluntary separation. Thus, my suggestion to employees who are faced with this situation, consult with an attorney, consult with the EEOC, and begin their documentation early, etc. before they voluntary quit.
"The credible evidence establishes that the claimant voluntarily left her employment because the employer could not relieve her from having to serve birthday cakes to customers, which act would violate her religious beliefs. The claimant took reasonable steps to protect her employment by suggesting alternative arrangements to the employer but due to the employer's size the employer, acting in good faith, could not reasonably accommodate claimant's religious beliefs. In the absence of any compelling State interest justifying the infringement of religious liberties, the State cannot deny unemployment insurance benefits because of conduct mandated by religious belief. Accordingly, we conclude that the claimant voluntarily left her job with good cause."
The comments to this case state:
"1. Claimant in this case had advised the employer at the time of hire of her religious beliefs. Based on her beliefs, she would not perform specific tasks. When the employer advised her that it would no longer accommodate her restrictions, claimant quit her job with good cause.
2. In another case (AB 433,355, not published) claimant's continued refusal to work on Sundays because of his religious beliefs is not misconduct. Claimant need not document membership in an established religious sect to demonstrate a sincerely held religious belief.
3. See also A750-2017, regarding Refusal of Employment"
But issues can arise when the employee's religious beliefs are not explained at the time of hire, or have changed after hire. And if the employee quits, the employer may also allege incidents of misconduct that led to the voluntary separation. Thus, my suggestion to employees who are faced with this situation, consult with an attorney, consult with the EEOC, and begin their documentation early, etc. before they voluntary quit.
Friday, March 12, 2010
UNEMPLOYMENT INSURANCE - OTHER HEARINGS
In October 27 blog, I posted the following:
"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."
I did hear from other attorneys from other legal groups but there was no consensus of opinion. The other day, however, I found the following case which I quote in part:
"PELZER v. TRANSEL ELEVATOR, 41 A.D.3d 379, 839 N.Y.S.2d 84[1st Dept 2007]
Because the doctrine of collateral estoppel is applicable to the quasi-judicial determinations of administrative agencies such as the Unemployment Insurance Appeal Board, such determinations become binding in a subsequent legal action for purposes of issue preclusion (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]).However,"[s]ince administrative agencies are normally charged with making determinations based on unique, and often times complex,statutes and regulations which apply specifically to them, care must be taken in identifying the precise issue necessarily decided in the first proceeding and comparing it to the issue involved in the second proceeding" (Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [1986], affd 69 NY2d 753 [1987])."
In this case, the issue was whether a finding of employee misconduct could be used in a subsequent negligence action against the employer by the employee, the court holding that a finding of misconduct would not defeat the employee's action for negligence by summary judgment and that the issue of negligence, viz., proximate cause, etc., was not determined in the Unemployment Insurance 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."
I did hear from other attorneys from other legal groups but there was no consensus of opinion. The other day, however, I found the following case which I quote in part:
"PELZER v. TRANSEL ELEVATOR, 41 A.D.3d 379, 839 N.Y.S.2d 84[1st Dept 2007]
Because the doctrine of collateral estoppel is applicable to the quasi-judicial determinations of administrative agencies such as the Unemployment Insurance Appeal Board, such determinations become binding in a subsequent legal action for purposes of issue preclusion (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]).However,"[s]ince administrative agencies are normally charged with making determinations based on unique, and often times complex,statutes and regulations which apply specifically to them, care must be taken in identifying the precise issue necessarily decided in the first proceeding and comparing it to the issue involved in the second proceeding" (Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [1986], affd 69 NY2d 753 [1987])."
In this case, the issue was whether a finding of employee misconduct could be used in a subsequent negligence action against the employer by the employee, the court holding that a finding of misconduct would not defeat the employee's action for negligence by summary judgment and that the issue of negligence, viz., proximate cause, etc., was not determined in the Unemployment Insurance Hearing.
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