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Numbers-58d189073df78c3c4ff87ced-300x200When our firm is retained by a new client whose property is in danger of being foreclosed, one of the first issues that needs to be determined relates to the equity in the property.  Equity can be defined as the net value of the property, once all liabilities are calculated.  It is an important component of deciding the correct game plan for defending any potential foreclosure action.

The first step towards calculating the equity in a property is to obtain an estimate of the current market value of the property.  Although there are online service such as Zillow which may give an estimate of a home’s current value, these “zestimates” are approximate and may not reflect the current physical condition of the property.  In order to obtain the most accurate value, we recommend hiring a professional appraiser.  The appraiser is an independent licensed professional who will thoroughly examine both the interior and exterior of the house, and also compare it to other similar properties on the market in the area where the property is located.  Once they have completed their inspection, they will provide a written report which gives a current market value for the specific property.

The second step is determining the current debt on the property.  Payoff letters can be requested from the current mortgage holder.  Keep in mind that there may be more than one mortgage on the property, requiring obtaining multiple payoff letters.  The payoff letter will show the amount needed to pay off the outstanding mortgage.  Depending upon how advanced the mortgage foreclosure process has proceeded, there may be additional charges added by the lender, such as property taxes advanced by the lender, as well as costs and attorneys’ fees for any foreclosure actions.

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There are challenges that people encounter that may become legal problems, such as eviction or the untimely death of a loved one.  Sometimes hiring an attorney can seem daunting during the most difficult time of one’s life.  In response to public need, some Courts have help desks or help centers for unrepresented litigants.  This post will describe the shortcomings of such help centers and our proposed solution from the perspective of Surrogate’s Court matters.

Probably nothing is more difficult than the death of a loved one.  Not only are emotions heightened, but practical legal and financial issues need to be navigated.  A Court’s help desk may provide procedural advice on the proper from that should be used, but may omit specific advice on how to actually complete the form or other general legal advice.  Laypersons are ill-equipped in possessing the technical knowledge that an experienced attorney has to complete all documents required for a successful Court filing so that the Court can appoint a legal fiduciary to handle estate affairs.

A qualified attorney will recognize complex estate matters and will be more readily able to make the proper Court filings that the Court will require.  Otherwise, the Court will inevitably delay the case when it requests additional filings that an experienced attorney would have already anticipated.  Of course, a legal expert is required for contested estates, where a party challenges the validity of a Will being submitted for probate or other contested matters such as who may be the best person to serve as the fiduciary of the estate.  Other examples of complex estates may entail those with non-marital children, a handwritten will submitted for probate or multiple wills presented for probate.  A Court’s help center does not provide legal representation and cannot provide the personal attention that a survivor needs in complex estate matters.

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townhouse-250x300As long-time readers of this blog may be aware, New York State has significant protections in place for defendants in foreclosure actions.  These legal requirements are meant to ensure that a homeowner is allowed an opportunity to defend his case, or at least be aware of a pending and existing foreclosure matter, and allow him an opportunity to enlist experienced legal counsel in order to protect his interest in his property.

With the economy in recession, and home interest rates having significantly risen due to efforts to forestall inflation, many borrowers now find themselves at risk of foreclosure.  The first legal protection in place is that if the home loan is in default, the lender must give a written notice of one hundred and twenty (120) days prior to commencing a foreclosure action.  Other legal notices may also be required to be sent by the lender (or their attorneys) prior to a lawsuit being filed.

Once a lawsuit commences and an Answer is filed, the Court will then schedule a foreclosure settlement conference.  Under New York law, the matter cannot proceed further until all parties meet in a settlement conference to discuss the case and attempt, in good faith, to negotiate a resolution.  Depending upon the results of the settlement conference, the Court may schedule additional conferences, as the lender may require submission of financial documents from the borrower so that a loan modification can be negotiated and approved.  If a loan modification is made, the borrower must show that he is complying with its terms by making regular payments before the foreclosure case can be dismissed.

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bagel-300x200Recently in the news is a story about a bagel store in the West Village neighborhood in Manhattan which became an “internet sensation” and its resulting popularity is causing problems with its landlord.  It seems that, according to the landlord, the store has been unable, or unwilling, to accommodate the large crowds seeking its bagels, and this has created lines out in the sidewalk and street, which the landlord has claimed is a violation of its lease.

The situation raises many legal questions, a discussion of which should be helpful to both commercial landlords and tenants who may find themselves in similar situations.

First, what happens in a legal sense once a landlord believes that a tenant is violating the terms of the lease?  In general, most violations of a commercial lease will cause the landlord to issue a Notice to Cure.  What this means is that the landlord, or their managing agent or attorney, will serve a Thirty Day Notice to Cure on the tenant.  This document will formally notify the tenant that it is not in compliance with a material term of its lease, and that the tenant now has thirty days to cure the violation.  In the case of Apollo Bagels, the landlord stated in its thirty-day notice that the lease was being violated in that business was being conducted outside of the premises, and that the lines of customers outside the store created a nuisance or unreasonable annoyance, another breach of the lease.

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aussie-300x185Our firm handles many partition matters.  As discussed in prior blog posts, a partition action occurs when one (or more) co-owners of a property no longer wish to co-own the property.  A partition action is a legal mechanism wherein a co-owner can petition the Court for an order to have the property sold, and the proceeds divided among the co-owners.  Usually a Court-appointed Referee is responsible for selling the property, either through a public auction sale, or by hiring a real estate broker.  The Referee will also determine, after hearing evidence submitted by the parties, exactly how the proceeds will be divided.

As the property at issue may be co-owned by several people, it is not always clear who is responsible for paying the carrying charges on the property, either before or during a partition action.  For example, three siblings inherit a house after the death of their parents.  They cannot agree on who should pay the mortgage and property taxes, and these obligations must be paid, regardless of the current dispute over the ownership.

Once this occurs, there may be a foreclosure action brought by the mortgage holder. All of the c0-owners would be named as defendants in such an action.  In addition, if the property taxes are not paid by any of the co-owners, and the mortgage remains unpaid, the property taxes may be in arrears.  In this situation, the entity to whom the taxes are owed may obtain a tax lien against the property.  Often, these liens are then sold to a third party.  This third party may then commence a tax lien foreclosure action against the property, and name all the co-owners as defendants in that action.

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marshalls-warrant1-300x207Our firm is involved in many situations in which one party seeks to remove another party from property, such as a house, cooperative, or condominium unit.  However, the situation underlying the attempted removal will often determine the correct legal method for effectuating said removal.

The two main legal remedies are an eviction action and an ejectment action.  Keep in mind that there may be situations in which an experienced attorney needs to use his legal judgment to determine which type of action to bring.  First, we will cover an eviction action.

Eviction actions are generally used in ordinary landlord-tenant matters.  In most cases, there is a tenant who is renting property from the property owner, who is the landlord.  There usually is a written lease, but not in all situations.  There are generally two types of eviction actions.  The first is a non-payment, in which the tenant has failed to pay her rent.  The second is a holdover, in which the tenant’s lease has expired, or a situation in which the tenant never had a lease and has a month-to-month tenancy.

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