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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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explorer-red-roses-canada-300x291Baseball fans learned of the recent passing of Pete Rose a/k/a “Charlie Hustle.”  Rose was most closely identified by his championship playing days for the “Big Red Machine” Cincinnati Reds.  He was a divisive figure in that he was known as the Hit King for having the most hits of any baseball player as well as other achievements that would have clearly allowed for his election to baseball’s Hall of Fame.  He was permanently banned from baseball and excluded from Hall of Fame ballots for gambling on the outcome of baseball games.  This post will address the legal issues raised by Mr. Rose’s death.

The pride of Cincinnati also led a colorful personal life.  He was married and divorced twice and had a girlfriend at the time of death.  Since he was not married at the time of his death, his girlfriend would not stand to inherit from his estate unless he had a Will and left assets to her. Rose had several children from his marriages.  He may have potentially fathered other children from his illicit romantic affairs, some of which may have been conducted with underage girls.  If Rose did not have a Will, his children (marital or not) would inherit his estate.

Once Rose was banned from baseball, he made a living largely through the sports memorabilia business.  He sold autographed baseballs and other items to his remaining fans.  The memorabilia that he amassed and kept from his playing days would potentially add significant value to his estate.  His estate fiduciary would need to determine the best means by which to dispose of such valuable personal property, unless Rose had a Will providing for direction for its disposition.

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Flood-Insurance-300x225Our firm has often been consulted by clients who inherited a house from their parents, and wish to sell the property, as they may have moved out-of-state, and the property became vacant after the passing of the last parent.

Usually, this is a straightforward transaction, which often requires legal assistance in acquiring legal authority to sell the property as part of an estate.  This involves experienced counsel filing for letters testamentary (if there is a will) or letters of administration (if there is no will).  Once the Surrogate’s Court issues the proper legal document, then the sale can proceed.

However, there is often another issue, which may become known to the surviving children only after their parents’ death.  It is possible that the parents borrowed against the property, even after the original mortgage that they took out to purchase the premises was paid off.  Often a reverse mortgage is taken out by the elderly parents, in order to raise funds to continue to live in the house.  Generally, such mortgages are only available to homeowners over the age of 62.  Once the loan funds are disbursed, there are no monthly payments.  The full amount of the loan would then be due after the death of the last borrower.

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