The Home Equity Theft Prevention Act

Have you ever heard of the term “short sale”? If you are a lawyer, did you ever represent a buyer purchasing from a seller who was either in default on his mortgage or against whom a foreclosure action had already been commenced?
If you are buying from a homeowner whose property is in foreclosure or has defaulted on her loan, or as a lawyer you represent such a buyer, then you need to be aware that New York has passed a strict and somewhat draconian notice requirement to effectuate a sale.

This law can be found in the Real Property Law 265-a, and is known as the Home Equity Theft Prevention Act. It governs sales of homes that are in foreclosure or default. If the sale is protected by the Act, and the buyer fails to fulfill any of the requirements listed below including attaching a notice of rescission, a seller may be able to legally cancel the contract; even years after the house was sold. A seller may also be able to sue the buyer for triple damages.

WHY DON’T MANY REAL ESTATE LAWYERS CARE OR KNOW ABOUT THE STATUTE?

DISCOVERY IN BETH DIN AND OTHER ARBITRATION TRIBUNALS

Obtaining discovery in a Beth Din is quite a lot different than in court or in the more national, secular, arbitration tribunals. The Federal and State judiciary forums have developed extensive and comprehensive rules of exchanging documents in discovery and obtaining pretrial depositions in order to avoid trial by ambush before jury or the bench. This discovery process is subject to abuse and adds many months, if not years, onto a process before there can be a final resolution of the dispute.

Arbitration is often chosen to avoid the rigors of discovery in an effort to obtain some rough justice in a relatively short period of time. To that means, many arbitration tribunals like AAA, JAMS and FINRA discourage or outright prohibit pretrial depositions, yet at the same time they are open to a more broad scope exchange of documents. This is not to say that one cannot get pretrial depositions at the AAA, but it is more uncommon.

SEXUAL HARRASSMENT SETTLEMENTS NON-DEDUCTABLE IF THERE IS A NON-DISCLOSURE AGREEMENT

This past year has shown that many famous men had covered up their predatory sexual abuse of women (and sometimes other men) by non-disclosure agreements. $45 million dollars were paid by or on behalf of Fox News host Bill O’Reilly to settle sexual harassment claims, almost none of which was publicly revealed due to confidentiality agreements.

Congress has sought to do something about this in the new tax law but, in most cases, it will have little or no effect on big businesses, religious organizations or Congressmen who abuse. It will harm little businessmen who care about their reputations and it will even harm victims of abuse. The Internal Revenue Code was amended to read that no tax deduction will be allowed for any settlement or payment made related to sexual harassment or abuse if such settlement is subject to a non-disclosure agreement. It also forbids anyone from deducting attorney’s fees arising from such a settlement. 

Can an employer video record its employees in the workplace?

Oftentimes, businesses would like to monitor their employees (beyond standard security reasons) during work hours to keep on top of the situation. This is especially prevalent in construction sites, warehouses, and the like but are sometimes used within standard offices as well. The question is, can an employer legally do this, and if so does the company need to notify the employees about the surveillance.

The short answer is yes, but with a few caveats.

How to execute a will that will hold up legally and halachicly.

As it is well-known, that according to Jewish law there are many strict rules for wills and inheritance (Yerusha in Hebrew). The basic rules that people commonly wish to circumvent are the requirement that a man’s sons are his sole heirs, and the bechor (legal firstborn) would receive a double share. Wives and single daughters receive living expenses from the male heirs, although to fully comprehend these divisions requires much scholarly study and is beyond the scope of this article.

The issue with writing a simple will that allows the wife to inherit fully, or all children to receive equal portions, is that the contract does not take effect until after death, at which time a person has no authority to make monetary transfers according to Jewish law. The Rabbis therefore advise a method to enable a will that accords with halacha and will be upheld in Beth Din. There are three basic steps to the procedure:

March Madness: Is NCAA Tournament Gambling Legal?

March Madness is here, and all over America people will be furiously filling out their brackets. Whether you join an office pool or a competition with friends, everyone usually throws a few bucks in the pot for the winner. According to the American Gaming Association, 40 million people fill out brackets each March and will wager an estimated $10.4 billion this year. Of that amount only $65 million is bet legally, with $2 billion being bet in the kind of pools in which you're probably partaking.

As a matter of state law, pay-to-enter NCAA Tournament pools are illegal if they constitute "games of chance." Courts apply various different tests to determine if a game constitutes as “chance”. Under all tests, the likelihood is that NCAA Tournament pools would involve a high level of chance. Remember a couple years ago, when Warren Buffet offered 1 billion dollars for anyone that could predict a perfect bracket? While that was a much longer shot (1 in 9.2 quintillion to be exact) than just coming in first place in your pool, it just goes to show how unpredictable the whole game is. This year Buffet is actually giving any Berkshire Hathaway employee, that can pick the Sweet 16 correctly, $1 million a year, for life. Only 14 out over 11 million brackets predicted that correctly in2015.

Freelance Isn't Free Act

New Protections for Freelance Workers 

Many employers that do not want to commit to hiring a permanent employee with the accompanying expenses such as medical benefits, often hire freelancers for such things as public relations, computer programming, care-giving and housekeeping. Many times the employment relationship is informal, based on nothing more than an oral understanding and many times the freelancer is not paid. A brand new, New York City, law tries to put this to an end.

The law, called the Freelance Isn’t Free Act, L. 2016/140, now requires, that upon demand, an employer of a freelance worker must provide a written contract and the freelancer must be paid pursuant to it, or the employer will suffer dire consequences. 

School Interns Slaves No More: Harassment and Rights of an Unpaid Internship

SCHOOL INTERNS SLAVES NO MORE

            In 1865 the 13^th Amendment to the US Constitution outlawed slavery.  In 1938   the Federal Fair Labor Standards Act set a minimum wage for all employees.  In 1964 Title VII and New York’s Human Rights Law protected paid employees from   harassment and discrimination based on age, religion, sex, among others and with the passage of ADA law from discrimination based on disabilities including pregnancies.  Employers were cautious about blatantly violating these laws and lawsuits abound where discrimination is discovered.  That is except for student interns.

            Student interns have been unable to seek any such protection since they are not technically employees because they work for free.  Many college masters programs in speech, PT or social work require their students to participate in internships.  These are our children who believed they are so lucky to get unpaid internships in their fields of employment.  Yet at times, those internships are not so ideal.  When an unpaid intern in New York sued a Chinese news company, Phoenix Satellite Television, because, she said, a supervisor had groped and assaulted her; a federal judge dismissed her case.  Since she was not paid for her work, the law did not view her as an employee under Title VII.  The same thing happened in 1997, when an intern at a psychiatric hospital claimed that she was urged to join an orgy and to strip naked before meeting with a doctor.  The courts threw out her sexual harassment claim because she was not paid.  The same was true for minimum wage rules; students were not deemed employees in the eyes of the law.

NEW PROTECTION FOR INTERNS

Hey Get Your Fence Off My Land

     Sometimes it happens when you buy land, you get a new survey taken of the property, and it shows that a neighbor’s fence or hedges encroaches on your land.  You want that fence or hedge removed and set on the property line.  You go to the neighbor and ask real politely, and it is like talking to the wall (pun intended).  Hopefully your first reaction is to call Alexander Novak, your lawyer, to start a lawsuit, but that is not such great advice.  Here is why:

   

   Old encroachments on your land call into play the law of adverse possession.  If the adverse possession lasted 10 years, you lose your land.  However, in 2008 the New York Legislature changed that law to make it much easier for you, the landowner, to win and get that fence taken down. The new legislation changed the common law rule of adverse possession. Under common law, things like erecting a shed, digging a trench, mowing, planting and raking grass, constructing underground dog wire fence, installing post for birdhouse, cultivating garden, and erecting fences were all winning arguments for adverse possession, but not any more. These actions are now called “permissive and non-adverse” actions. 

   

   But do not run to court so fast!  If your neighbor had already done those things for 10 years before the new 2008 law came into effect, she or he could still win despite the new law.  The courts in New York have ruled that the neighbor is entitled to the application of the old version in effect when her claim to the disputed property allegedly ripened into title.  The NY Court of Appeals said, “although a statute is not invalid merely because it reaches back to establish the legal significance of events occurring before its enactment, . . . the Legislature is not free to impair vested or property rights.” So if the neighbor could have won in 2008, then she or he could still win today.  This lawsuit will be very fact oriented.