Useful Home Buying Resources

Wells Fargo, a big player in the mortgage market, has some free resources on its website that home buyers might find useful. Here is a link to a nice loan application checklist. You can use it to gather materials needed for any mortgage application - not just for Wells Fargo. There are other checklists available as well here.

Row Houses, Brownstones and Townhouses

This post isn't about law, but it is about real estate - and since most of my legal practice has some connection to real estate, it's fair game.

Brookynites tend to identify any attached house on any block in neighborhoods such as Park Slope, Bedford-Stuyvesant or Cobble Hill as a "brownstone". A recent post at www.BrickUnderground.com explained some nuances behind that overly used term, and pointed to a nice document at the Landmarks Preservation Commission that gives lots of interesting details on the most prevalent architectural styles one finds in "Brownstone Brooklyn.

Here is a link to the document:
http://www.nyc.gov/html/lpc/downloads/pdf/pubs/rowhouse.pdf.

And a link to the article at Brick Underground:
http://www.brickunderground.com/blog/2014/09/brooklyn_brownstone_intel

Contractor Disputes

Planning for trouble is the best way to avoid it.

A homeowner recently asked a question about a dispute with a contractor, so I thought this would be a good opportunity to review some key issues regarding contractors.

·       Licensing. You have more protection if you use a licensed contractor. The two licenses to look for are the Home Improvement Contractor license, issued by the NYC Department of Consumer Affairs, and the General Contractor license, issued by the NYC Department of Buildings.

If you use a licensed contractor, you know that the company working on your property has at least a basic level of insurance, and less unlikely to disappear in the middle of your job. To check both agencies, go to www.nyc.gov, click on “NYC Resources”, then “Agencies”. Consumer Affairs and Buildings are listed alphabetically. Each agency’s website has a link for consumers to search for licensees.

·       Written Contract. Get a written estimate and a written contract! The Department of Consumer Affairs requires that contractors give you a three-day right of rescission in any home improvement contract. This means that you can change your mind, without penalty, within three days after you sign the contract. You can see a sample contract, and lots of other helpful information, at the Department of Consumer Affairs’ contractor page: http://www.nyc.gov/html/dca/html/initiatives/contractors.shtml

·       Keep Everything in Writing. Put all of your communication with your contractor in writing, and insist that the contractor do the same. Use email. If you send regular mail, make it certified if it is important. Make payments by check or credit card so that there is a permanent and verifiable paper trail. Avoid making payments by cash.

·       Hold Something Back. Hold back final payment until you are certain that everything has been done as required by the contract. A contractor looking forward to final payment will be more motivated to make sure you are satisfied than a contractor who has already collected all the money required by the contract.

·       A picture is worth a thousand words. Make a photographic record of the job. Take “before” and “after” photos, and take photos of the work as it progresses. Take photos of any damage caused by your contractor.

·       Mechanic’s Lien. If a dispute arises over payment, your contractor may file, or threaten to file, a “mechanic’s lien”. This is something that can even be filed by a subcontractor or material supplier even if you never dealt with them directly. A mechanic’s lien is a formal claim for money that is filed in city property records. A contractor, subcontractor of supplier has eight months to file a lien from the time they last provided (or claimed they provided) work or supplies. They then have one year to start legal action to “foreclose” on their lien.

If you are served with a Notice of Mechanic’s lien, you can file a bond to “discharge” the lien. This procedure removes the lien from your title, but you still have to slug it out in court (or in arbitration, if your contract says so) with the contractor.

You don’t necessarily have to wait for the contractor to sue you. You can start legal action first. In New York City, depending on the amount, you might go through Small Claims Court (up to $5,000), Civil Court (up to $25,000) or Supreme Court. This is where your written and photographic record will really pay off and save you a ton of time and money.

·       The Prompt Payment Act. If your construction or renovation project is for an apartment building or larger commercial property, you may need to be aware of the Prompt Payment Act (Article 35E of the NY General Business Law). This law is complex, but it does not apply to the vast majority of residential construction contracts. Be aware of it if you a large property holder.

Call, visit or click for more information:

Levy & Nau P.C. / attorneys at law

844-LEVY-LAW or 718-622-8150

854 Fulton Street, Brooklyn NY 11238

www.LevyNau.com

Protect Your Will

Protect Your Will

If your original will is lost, a copy may be useless.

A recent case decided in the Surrogate’s Court in Manhattan highlights the importance of keeping your original will safe, and keeping it where it can be found when the time comes. Here are the facts:

RS signed a will in 2002. He died in 2014. His wife was the sole beneficiary under the will. If the will were probated, the wife would get everything. If the will was not probated, then other heirs would stand to gain, and the wife would lose most of the inheritance that her husband left for her.

The will had been prepared by an attorney in 2002. The attorney was RS’s friend and business associate for some 20 years.

Problems arose when the original will could not be found. Only a copy could be located. The attorney stated that when he prepared the will in 2002, he gave the original to RS, and only kept a copy.

This was a problem because the law requires that the original will be produced and submitted to the court.

In the end, RS’s wife lost and only received a relatively small statutory portion of her husband’s estate. Other family members, who were intentionally left out of the will by RS, inherited the lion’s share of RS’s fortune, all because the existence of the original will could not be proven to the satisfaction of the court.

I have seen many cases over the years like this. A client comes in and is sure that her deceased relative had a will, but no one can find it. There is not much we can do in situations like that. Except in the most unusual circumstances, only an original will can be given legal effect in probate proceedings.

So how can you protect your will? (You DO have a will, right?) The best way is to file it for safekeeping with the Surrogate’s Court. For a $45 filing fee, the Surrogate’s Court will take your will and keep it in a large, secure, fireproof safe in the courthouse. This is a one-time fee, good for the rest of your life.

The court clerk will record the filing in the court’s computer system, so when the time comes, your original will can be found, and your final instructions can be honored.

Call, visit or click for more information:

Levy & Nau P.C. / attorneys at law

844-LEVY-LAW or 718-622-8150

854 Fulton Street, Brooklyn NY 11238

www.LevyNau.com

Statutes of Limitation

What are statutes of limitation, and what do they mean for people with potential court cases?

In general terms, a statute of limitation sets a time limit on how long you have to file a lawsuit. As with most aspects of the law, there are the rules, then there are the fine points and the there are the exceptions.

For example, suppose you are injured in a car accident. You were a passenger in your friend's car and you were hurt when your friend's car was involved in a collision with a New York City Transit Authority bus.

Now you have a claim, or "cause of action", to use the ancient and traditional phrase, in negligence. You were injured - through no fault of your own - because one or both of the drivers involved in the accident failed to exercise proper care while operating their respective vehicles.

Statutes of limitation can be found in the Article 2 of the New York State CPLR - Civil Practice Law and Rules. The basic rule in accident cases is that you have three years from the date of the accident to start a lawsuit. In our example, one of the defendants will be the Transit Authority, which is a part of New York City's government.

But in our example, you must also look in a completely different place: the General Municipal Law. Buried in that set of laws is a provision that shortens your time to sue the City from three years down to one year and ninety days.

Other exceptions to general statute-of-limitation rules extend the time, rather than shorten it. For example, let's say you are the victim of fraud. You might not discover the fraud for days, weeks or even months after it happens. Suppose someone forges your name on a deed to your house. You might not know until months later when you get an eviction notice from the new "owner".

What happens if you miss the deadline imposed by the statute of limitations? If you are late even by one day, you might be forever barred from relief on your claim.

I have a case going on now where my I am using the statute of limitation to my client's advantage. In 2007 my client, who I'll call Alice (not the client's real name) was sued by Beverly (not the plaintiff's real name). Beverly claimed that Alice took title to a house by fraud perpetrated against the former owner, who was Beverly's relative. We got the case dismissed because Alice was never properly served with a summons.

Beverly could have started a new lawsuit - this time taking care to ensure that her summons was properly served - any time up to six years after the statute of limitations started to run.

Giving Beverly the benefit of the doubt, let's say she wasted no time and filed her lawsuit in 2007 on the very day she discovered the alleged fraud. That day was August 14, 2007. So we'll give her six years from that date. That means she had to re-file her lawsuit by August 14, 2013.

For reasons we will never know, Beverly waited until July 9, 2014 to re-file her lawsuit. Unfortunately for Beverly - but very fortuitously for my client - Beverly was eleven months too late. So her case is going to get dismissed again, this time because she simply waited too long.

If Beverly had re-filed her case on Wednesday, August 14, 2013, she would have her day in court. On August 15th she would have been as out of luck as she is now, because the statute of limitations is strict, and judges have no authority or power to extend them by even a single day.

The statute of limitation is what we attorneys call an "affirmative defense". This means that a defendant has to make a point of it when answering the complaint. It does not apply automatically. You have to 'affirmatively" raise it as a defense. If a defendant does not raise the statute-of-limitation defense at the outset, the defense might be lost.

So, if you have a legal claim to make, don't wait! And if you are the one being sued, ask your attorney about using the statute of limitation as a defense.

A New Scam

Scammers Try to Convince You to Pay for What’s Free

Watch out for seemingly official letters about your deed.

One of our clients walked into the office this morning with an envelope he received from “Record Transfer Services”. The envelope has a big, bold warning about five years’ imprisonment for anyone interfering with delivery of the letter. The warning is in a bold box. Below that are the words “this is not a government approved or authorized document”, but that is not the first, second, or even third thing that your eyes are drawn to.

Our client recently sold a house and bought a condominium. He put the money left over in savings. The people who sent this envelope saw the deed transfers – as anyone can, since they are public records.

Inside the ominous envelope is a letter with lots of boxes, bar codes, shaded areas and other style elements that make it look like something the city might send out.

The bottom line of the letter is that the send offers to obtain a copy of your deed for you, for only $83.00, in 21 days.

They do tell you – again, in a place where your eye is not naturally inclined to go – that you can get a certified copy of your deed for somewhere between $4 and $20, depending on the number of pages.

The letter does not tell you that you can print out an uncertified copy of your deed – in fact, just about any deed – for free, from any computer connected to the internet and a printer.

The letter probably is technically legal, because it does tell you, somewhere on the page, part of the truth. It is designed to take advantage of people who don’t have an attorney, or who are not experienced with real estate, or who just don’t have the time to deal with too much paperwork.

If you get anything in the mail that looks official, read it VERY carefully, because it might not be official at all. If you have any doubt, run it by another pair of eyes. Every day dishonorable people are thinking hard about how to take your money for nothing. Don’t be a victim.

Call, visit or click for more information:

Levy & Nau P.C. / attorneys at law

844-LEVY-LAW or 718-622-8150

854 Fulton Street, Brooklyn NY 11238

www.LevyNau.com

Pre-Foreclosure Notice is Key

If your mortgage requires notice of default before foreclosure, courts will enforce that provision strictly.

Read your loan documents and learn about “conditions precedent”.

A recent case decided by the Appellate Division of the Supreme Court has upheld a lower court decision dismissing a foreclosure case because the bank did not prove that it complied with the terms of its own mortgage.

In Wells Fargo v. Eisler, decided on June 25^th, the court ruled against the bank and in favor of the homeowner.

Wells Fargo started a foreclosure case, and subsequently filed a motion for summary judgment. The defendant homeowner filed a cross-motion to dismiss the case. The homeowner argued that the mortgage stipulated that before the bank could sue for foreclosure, it was required to mail a notice of default and allow time for the homeowner to cure the default.

Wells Fargo submitted an affidavit from a bank officer saying that the notice of default was sent “in accordance with the terms of the mortgage”. The Supreme Court judge hearing the case held that this affidavit was not sufficient to grant the bank judgment, and also not sufficient to overcome the defendant’s cross-motion to dismiss.

The bank appealed, and the Appellate Division upheld the lower court’s ruling in favor of the homeowner. The court noted that the bank’s affidavit was “unsubstantiated and conclusory”. In other words, the affidavit did nothing more than claim that a proper notice was properly sent as required by the terms of the mortgage. The affidavit did not contain or refer to any actual proof that this was true. The mortgage, which formed a contract between the parties, required that the notice be sent by first class mail to the address given by the borrower for such purposes.

The defendant, unlike the bank, provided a detailed affidavit that convinced the court that he did not actually receive any default notice before being served with the foreclosure summons and complaint.

This pre-foreclosure default notice was a “condition precedent” to foreclosure, meaning that it was a condition that had to take place before the bank filed a lawsuit against the borrower. No default notice meant no foreclosure.

Since Wells Fargo did not prove that it complied with this necessary condition, not only could it not obtain summary judgment in its favor, but its entire case was dismissed. Now Wells Fargo must start the entire process over again, starting with a proper default notice, sent as required by the mortgage, with proof that it was done.

The take-away for all property owners with a mortgage is: know the terms of your mortgage and other loan documents. There is more in those documents than just an interest rate and a monthly payment amount. The more you know, the better you can hold your lender to its contractual and legal responsibilities.

Call, visit or click for more information:

Levy & Nau P.C. / attorneys at law

844-LEVY-LAW or 718-622-8150

854 Fulton Street, Brooklyn NY 11238

www.LevyNau.com