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?

Dangers of Lending Money to Your Business

            

Owners of small businesses continually fail to realize that their corporation or LLC is a separate legal entity that owes certain duties to its creditors. While it is tempting to lend money to your company in times of hardship and to pay yourself back once some money comes in, there is a very good chance you will have to eventually turn the money over to the company’s judgment creditors.

Both New York and New Jersey have Debtor and Creditor Laws, which protects creditors from fraudulent actions of their debtors. The laws have their own definitions that are different from what might be commonly believed. If a judgment creditor sues an owner of a company for taking money out of a failing business in fraud of creditors, the usual defense is that it was just a repayment of an existing loan and so there was fair consideration for the payment. In New York that defense will usually fail. First, most owners will fail to document the loan by a promissory note or by some other document. Failure to provide documentary evidence of the loan is fatal to the defense in both New York and New Jersey.

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:

NJSLAW CLE: Mortgage Contingency Clause and Ethical Issues in NJ Real Estate Contracts

Live Webinar on April 3, 2017 @ 3:00 PM. Register Here!

The mortgage contingency clause is one of the most important clauses in real estate contracts. However, many attorneys don’t bother to read it. This is a mistake since the terms of the clause, which may differ from contract to contract, can have an immense impact on your client.  

In this program, Alexander Novak and Kim Juhase, will provide an overview of this clause and will discuss the problems that could arise if the wrong language is used. In the second half of the program, they will discuss possible ethical problems that might arise in real estate transactions. They will also provide a brief overview of NY law for those who are dually admitted.

By the program’s end, Juhase and Novak will aim to answer the following questions:

• What are the best terms for the Buyer or the Seller?
• To whom must the Buyer apply for a mortgage loan and in what time period?
• Do conditional commitments satisfy the contract?
• What happens when a mortgage commitment is revoked by the lender?
• How can one avoid malpractice or a grievance complaint in real estate transactions?

Learning Objectives:

1. Understand how different terms on a mortgage contingency clause affect your client
2. Learn how to avoid ethical problems in real estate transactions

Click here to register!

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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. 

What Type of Apartment Do You Own?

      How you hold your residential apartment will have enormous legal consequences.  The three major ways of doing so is renting, as a co-op, or a condominium.  However, many people do not realize the differences between them.

            The most familiar one is renting.  A landlord rents one of his apartments to you pursuant to a written lease which sets forth the details of the landlord-tenant relationship. The tenant has no interest in or responsibilities for the common areas. In a multiple dwelling, the landlord is required to maintain not only the common areas by also the tenant’s apartment under a warranty of habitability and quiet enjoyment.  A landlord may be held liable even for damage caused to your apartment by another tenant.

Your Private Emails Can Be Read By Your Employer

Many people, like our former Secretary of State, consider their work e-mail as their own private lifeline to the outside world.  Crude jokes, funny stories about your bosses or put-downs of minorities are exchanged.  However, doing so can get you fired because your emails are not private. Your employer can read them and use them against you in any disciplinary proceedings.

A federal law, the Electronic Communications Privacy Act of 1986, prohibits the interception of email communications and accessing stored emails without authorization.  Unfortunately, these apparent protections are illusory for employees.  The courts have very narrowly interpreted the statute.  In the first instance, they have interpreted “interception” as being the simultaneous reading of an e-mail as it is being sent.  Reading an email already transmitted does not qualify.   As for stored emails, the law allows for searches by communication service providers.   If your email is stored on your employer’s email server, you are out of luck.  Generally, the courts have also held that employees have no reasonable expectation of privacy in their work computers.

Do not use your work computers for private communications.  Gmail and other servers are free and most of us have smart phone where we can read our emails and texts.  Don’t be another Hilary Clinton. 

Kim Steven Juhase, ESQ.
Partner, Novak Juhase & Stern

Check us out on Facebook, LinkedIn, and at njslaw.com  

A Dog, a Cow and a Cyclist Ride into a Bar

       People get injured and they look to blame someone and if that someone has an insurance policy, a lawyer may be there to help.  Not every injury is awarded compensation.  For instance if you trip over a inch difference in the grade of a sidewalk, the courts will not likely award you anything. 

       What happens if you let you cow roam around the neighborhood?   In 2013 in a decision by the Court of Appealsin Albany, the highest court in the State, a woman was allowed to sue the owner of a cow she crashed into with her van. 
Sounded like the Court of Appeals felt people have to keep their animals on a leash or be liable for mishaps.  Or so that it is what two lower courts ruled.   The names of those cases were  Doerr v. Goldsmith and Dobinski v. Lockhart. The cases involved Wolfgang Doerr, who was injured in 2009 after crashing into a 45-pound shepherd mix on Central Park’s bicycle loop road, and Cheryl Dobinski, who fell from her bike in 2012 when she tried to avoid two German shepherds that ran onto the road near their rural home south of Buffalo.  In the New York City  case the lower court awarded significant damages to a cyclist who collided with a dog.  After a trial  the jury awarded the plaintiff $1,000,000.  On appeal the next highest court reduced that to $600,000.  I can only assume there was an insurance company funding the defense because this case was taken to the Court of Appeals.
 
       Just this June that Court ruled a cyclist cannot sue a dog’s owners, saying riders should be careful not to cross paths with animals that are a constant public presence.  To distinguish this decision from the 2013 cow case Judge Sheila Abdus-Salaam wrote, “In public parks, one regularly encounters dog owners with their unrestrained canine companions … whereas one ... certainly never expects to see someone taking his or her cow for a walk in the neighborhood.”  The court said the cyclists could not sue the dog owners because they had not shown that the dogs had a history of biting or attacking people.  A lower appeals court cited the cow case when it revived Doerr’s lawsuit, but the Court of Appeals last week  reversed the decision.

      I like this decision.  Dogs running after bikes is something I grew up with, it is common and that is just life.  Oh yea this has nothing to do with a bar, but I did think an award of $1,000,000 to the Central Park cyclist was a joke.



Alexander Novak, 

Partner, Novak Juhase & Stern

Check us out on Facebook, LinkedIn, and at njslaw.com

Grandparents Have No Automatic Rights To Visitation

      In many of our families, grandparents play a special role in the lives of our children.  They are the source of free babysitting and frequently they are intimately involved in our children’s lives.  But what happens when there is discord between grandparents and their children and they are prevented from seeing their grandchildren?  Do they automatically have a right of visitation. The answer in New York is no.  If the parents refuse visitation, a grandparent must go to court and he may not win.

      Under N.Y. law, a grandparent’s right to petition for visitation is restricted to only two circumstances. When either parent of the grandchild has died, a grandparent has an absolute right to petition.  If both parents are living, a grandparent has standing to request visitation rights only if he can establish circumstances in which equity would see fit to intervene.  This means that the grandparent has to show that he has maintained a close and long term existing relationship with the child or tried to do so and was prevented by the parent.  Where contact has been sporadic or just involved sending birthday and holiday cards, the court will not grant the petition.  Allegations of love and affection are not enough.

     Even if a grandparent has standing to petition for visitation, he still has to show that visitation is in the best interests of the child.  Where both parents who are still married to each other strongly object to the grandparent’s visitation, it will probably be denied.  The N.Y. Court of Appeals (Article by the New York Sun) has held that there is a strong presumption that the parents’ wishes governs regarding the best interests of the child and this creates a high hurdle for petitioning grandparents to overcome.

      If, as a grandparent, you foresee possible visitation problems in the future, you should try to be involved in your grandchild’s life as much as is reasonable.  If the parents try to restrict your contact, you should document you attempts to do so.

Kim Steven Juhase, ESQ.

Partner, Novak Juhase & Stern

Check us out on Facebook, LinkedIn, and at njslaw.com       

Your Housekeeper May Sue You

          Do you employ a nanny for your children, a housekeeper or a companion for your sick or elderly parents, pay them in cash and fail to keep records of their employment? If so, you are leaving yourself open to a costly lawsuit.  Since 2010, household workers in New York are covered by the Labor Law’s minimum wage and overtime laws. Currently, the minimum wage is $8.75 an hour.  Their workweek is 40 hours (44 if residing with her employer).  Anything over that must be paid time and a half.  They must have one day off a week. You must obtain coverage for disability benefits and if they work at least 40 hours a week, you must obtain Worker’s Compensation coverage.

If You Want Modification, Better Hire an Attorney

         

        Perhaps the most prized possession of an average American is his or her home (although the iPhone is catching up). While it still retains its status as the ultimate expression of achieving the American Dream, at no time in US history was this dream subject to peril as it has been after the 2008 collapse of the housing market.

What could be worse in one’s moment of desperation and need of assistance than to be taken advantage of by some unscrupulous individual or a company that will claim to protect you but in reality take your money and disappear? As these fraudulent schemes made their way into the public eye, Federal and State governments responded with important protective laws.

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

Baseball: Suing For Getting Hit by a Foul Ball

            Spring is here bringing with it the thoughts of another baseball season.  It can also bring with it thoughts of death and severe injuries. While there have been only two fans so far killed at professional league ballparks, at least 49 fans have died at amateur games and countless others have been severely injured in the stands by foul balls. Strangely enough, if you are injured or killed in the stands by a foul ball, you generally have no legal remedy.

           

Almost all states, including New York and New Jersey follow what is called the limited liability rule.  This is set forth in the 1981 New York Court of Appeals case of Akins v. Glens Falls City School District.  In that case, plaintiff attended a high school baseball game. The field was equipped with a 24-foot tall and 50-foot wide backstop behind home plate but only a three-foot high fence along the baselines.  She decided to watch the game standing behind the three-foot fence and was struck in the eye by a sharply hit foul ball, causing her serious and permanent injury.  The plaintiff sued the school district.

International Sale Of Goods Not Governed by the UCC

   Robert in New York receives a telephone call requesting he deliver a container of his pickles to Toronto from a buyer he never dealt with. Robert agrees and delivers the pickles. Shortly thereafter, the customer complains that the type of pickles he ordered was not delivered.  Robert wants to sue.  What law governs?

   

   While many businessmen (and a lot of lawyers) would say New York’s Uniform Commercial Code (UCC) governs, but they would be wrong.  Since 1988, sale of goods between the U.S. and most other countries have been governed by a treaty called the United Nations Convention on Contracts for the International Sale of Goods. Since it is a treaty, it overrides the law of all 50 states including the UCC. It has been acceded to by 83 countries including Canada, Mexico, Israel and most of Europe except for the United Kingdom.

Novak Juhase & Stern, To Present CLE Lecture (Lakewood, NJ)

CLE Lecture for Continued Legal Education

Two of the partners at Novak Juhase & Stern will be presenting a lecture on The Mortgage Contingency Clause and Ethical Issues in Residential and Commercial Real Estate Contracts.

It will be presented by Alexander Novak and Kim Juhase. A 2-hour lecture to cover the following:

Ø  May the Buyer Apply to a Mortgage Broker?

Ø  How Soon Does the Buyer Need to Apply?

Ø  What if the Buyer Obtains a Commitment in a Different Amount than Provided in the  Contract?

Ø  Conditional Commitments: Do they satisfy the contract?

Ø  Commitments Given, then Revoked by Lender

Ø  Ethical Issues Regarding the Mortgage Commitment Contingency Clause

Ø Ethical Issues in Residential and Commercial Real Estate Contracts: Duty to Communicate,   Retainers, Dealing with Opposing Counsel, and Truthfulness.

Location: 1125 Ocean Ave # 1, Lakewood, NJ 08701

Date:       May 15, 2015
Time:      Breakfast starts at 8:30 (2-hour lecture)

               Kosher Food will be served

For reservations contact: 

Lainie Goldberg
Director of Education
Madison Commercial Real Estate Services

(732) 333-2783 - Direct
(732) 996-6768 - Cell