A Concomitant Battle

The Oxford Language Dictionary defines “concomitant” as meaning “naturally accompanying or associated, following or accompanying as a consequence”. Adjectives include accompanying, attendant, consequent, corollary, ensuant, incidental and resultant. For instance, Concomitant drugs are two or more drugs used or given at or almost at the same time (one after the other, on the same day, etc). In the realm of Landlord Tenant law, this comes into play in non-payment summary proceedings (not in holdovers) wherein monetary awards for rental arrears are given concomitant with awards of possession.         Hand-in-hand, possession-and-judgment. But what...

A Comparison Between: Small Business Chapter 11, Regular Chapter 11, and Subchapter V

Bankruptcy can be a daunting prospect for any business, but for small businesses, it can feel especially overwhelming. However, there are different options available under the bankruptcy code that cater to the unique needs and circumstances of small businesses. In this article, we will delve into three specific chapters of the bankruptcy code: Small Business Chapter 11, Regular Chapter 11, and Subchapter V, examining their differences, advantages, and limitations. IntroductionBankruptcy is often perceived as a last resort for struggling businesses, but it can also be a strategic tool for restructuring...

A Comparison Between Means-testing for Chapter 7 and Chapter 13

Bankruptcy can be a daunting prospect, but for many individuals drowning in debt, it can offer a fresh start and a path to financial stability. Two common options for individuals seeking bankruptcy relief in the United States are Chapter 7 and Chapter 13 bankruptcy. Each comes with its own set of rules, benefits, and drawbacks. However, one crucial aspect that applies to both is means-testing. In this article, we'll delve into the differences and similarities between means-testing for Chapter 7 and Chapter 13 bankruptcy, helping you understand which option may...

Comparison Between Judicial Lien Avoidance Under 11 USC 522(f) for Chapter 7 and Chapter 13

Judicial lien avoidance is a critical aspect of bankruptcy law that allows debtors to remove certain liens from their property, thus providing them with a fresh financial start. Under Title 11 of the United States Code (USC), specifically in section 522(f), debtors filing for bankruptcy can seek to avoid judicial liens that impair their exemptions. However, the process and implications of judicial lien avoidance differ between Chapter 7 and Chapter 13 bankruptcies. In this article, we'll delve into the nuances of both to help individuals make informed decisions regarding their...

When Are Assets in a Trust Vulnerable to being Liquidated or Being the Subject to a Turnover or Transfer Avoidance Action by a Bankruptcy Trustee?

Trusts play a pivotal role in estate planning and asset protection, allowing individuals to safeguard their wealth and distribute it according to their wishes. However, the security of assets held in a trust can be called into question in the event of bankruptcy. Understanding when trust assets may become vulnerable to liquidation or turnover actions by a bankruptcy trustee is crucial for individuals seeking to protect their wealth. Understanding TrustsTrusts are legal arrangements where assets are held by a trustee on behalf of beneficiaries. They come in various forms, including...

Distressed Assets Are Owned By a Trust, Can the Trustee Over the Trust File a Bankruptcy Petition for the Entity Either in Subchapter V or Chapter 11?

In the complex landscape of finance and law, the management of distressed assets held within trusts raises pertinent questions regarding the authority of trustees to initiate bankruptcy proceedings. This article delves into the intricacies of distressed assets owned by a trust and explores whether the trustee overseeing the trust can file a bankruptcy petition, examining the possibilities within Subchapter V and Chapter 11 bankruptcy frameworks. Understanding Trusts and Trustees: Trusts serve as legal entities that hold assets for the benefit of beneficiaries under the administration of trustees. Trustees bear fiduciary...

*BREAKING NEWS*- A BLOW TO SQUATTERS’ RIGHTS

On Monday morning, April 22, 2024, New York Governor Kathy Hochul signed a portion of the New York State Fiscal Year 2025 (“FY2025”) budget that will change the way “tenants” are defined under New York State law. The definition updates New York State Real Property Actions and Proceedings Law (“RPAPL”) Section 711 to read that “a tenant shall not include a squatter,” and further defines a squatter as “a person who enters or intrudes upon real property without the permission of the person entitled to possession, and continues to occupy...

UPDATE ON THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); CONSTITUTIONAL OR UNCONSTITUTIONAL

I. ISSUE The purpose of the FAPA is to protect homeowners from "abuses of the judicial foreclosure process." HSBC Bank USA, N.A. v. Nicholas, 2024 N.Y. Misc. LEXIS 71. Following the Engel decision, FAPA was enacted as a remedial statute to clarify the intended purpose of an already existing statute; the legislature claimed that the FAPA was necessary because CLPR § 205 was manipulated by the mortgage lending and servicing institutions, and poorly interpreted by the courts. The constitutionality of FAPA's retroactive effect is questionable. Some courts believe that applying FAPA...

Can a debtor who injured another person or another person’s property get their debts discharged by filing for bankruptcy?

Before this question can be answered, it is important to be familiar with the statutory provisions that address and clarify this issue. 11 U.S. Code § 523 lists different exceptions to debt discharges when one files for bankruptcy. The exception relevant to this topic is listed in section (a)(6). It states “(a) A discharge under section 727, 1141, 1192 [1] 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt― (6) for willful and malicious injury by the debtor to another entity or to...

DUE PROCESS UPON UNADJUDICATED INCOMPETENTS

When we talk about “incompetence”, we are not talking about your office assistant who frequently mixes up the coffee creamer with Mylanta. We are talking about judicial incompetence wherein the afflicted has not been formally declared incompetent by a judicial body following an Article 81 proceeding, but instead displays evidence of “apparent incompetence” where the practical aspects of incompetence are glaringly present even though the issue has not been brought before a Court. It’s easy to picture a scenario wherein a person with certain cognitive limitations due to (for example)...

Discharging Student Debt Through Bankruptcy In 2024

Although student loans are exempt from discharge in bankruptcy, under the current Bankruptcy Code, student loans can still be discharged under certain circumstances. The Bankruptcy Code permits debtors to be excused from their obligation to repay their loans but only if they can show undue hardship. Unfortunately, the burden of proving “undue hardship” is not an easy task. Consequently, due to this burden, most people who attempt to discharge their student loans are not successful, and even more people do not even dare to try. In November 2022, the Department...

Does a Defendant’s active duty status in the military warrant a stay of civil proceedings?

In NYS Military Law Section 300 the NYS legislature notes that it is important and essential that  in certain cases there should be a temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in the military service.  The basis for the law is that it would be unjust ,unfair and prejudicial to the service member to permit a legal action to proceed in the absence of a person who is serving our country any may not be able to defend the action. NYS Military...

Conflicting Predicate Notices In Landlord/Tenant Matters

In the magical, fairtytale world of landlord-tenant law, the story book always opens up to the first chapter: ‘The Predicate Notice’ (also called the Notice to Quit). A predicate notice is the notice that must be served on a tenant before a summary proceeding can be commenced in Court. It states the foundation or basis for the action that is to follow. This could be in the form of a rent demand, which is a predicate notice for a non-payment action; or a notice of default, notice to cure, notice of...

Bankruptcy and Discrimination

One of the many questions we get at Ronald D Weiss, P.C. is, “Can someone discriminate against me for filing bankruptcy?”. In this reading, let’s dive into the many types of discrimination filers have faced and their outcomes. Federal law forbids private employers, government, and government agencies from discriminating against employees in debt. A bankruptcy filing may be discovered on a credit report or credit check, but they cannot discriminate against you because of it. Understanding employment discrimination is crucial for both employees and employers alike, as it can have...

SERVICE OF PROCESS UPON A DOORMAN- WHEN IS IT PERMITTED

The doorman. Sentinel of the apartment complex; keeper of the co-op. The duties and responsibilities of the doorman (who, for our purposes, encompasses no specific gender) can be varied and numerous: announcing visitors; accepting packages; logging complaints; even helping tenants with their groceries. But is the doorman authorized to accept service of process on behalf of their tenants or community members? First, let’s review the standard rules for services of process- Civil Practice Law and Rules (“CPLR”) 308(2) states that, “Personal service upon a natural person shall be made…by delivering...

The 3-6-2 Double Play

What exactly is Redemption? When a debtor commences a bankruptcy case by filing a bankruptcy petition, the Bankruptcy Code imposes what’s called the “automatic stay.” 11 U.S.C. § 362. The automatic stay is one of the most important and valuable tools available to debtors in their pursuit of their fresh start. Matter of Johns-Manville Corp., 26 B.R. 405, 410 (Bankr. S.D.N.Y. 1983), aff'd sub nom. In re Johns-Manville Corp., 40 B.R. 219 (S.D.N.Y. 1984) (citing S.Rep. No. 95–989, 95th Cong., 2d Sess. 54–55 (1978), U.S.Code Cong. & Admin.News 1978, pp....

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