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

Blog by Alexandria Melendez (Touro Intern) ____________________________________________________________________ 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...

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

Blog by J'nae Thompson (Touro Intern) ____________________________________________________________________ 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...

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

Alexandria Melendez ____________________________________________________________________ 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...

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....

90 Day Notice By Attorney

Can the 90 Day Pre-foreclosure Notices be mailed to the Borrowers by Counsel for the Lender? RPAPL § 1304 requires that at least 90 days prior to its commencement of a residential foreclosure, the plaintiff must send to county where registered or certified mail and by first class mail, notice giving it warning of its default and the Defendant’s need to cure its mortgage loan within ninety (90) days and provides a list of at least five (5) local housing counseling agencies that serve the County  where the Defendants/borrowers reside....

Redemption in Chapter 7 Bankruptcy

What exactly is Redemption? 11 U.S.C §722 authorizes an individual debtor to redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing dischargeable consumer debt. A debtor in a Chapter 7 bankruptcy may have the ability, or more accurately, the opportunity to redeem personal property. Redemption is the process in which a debtor in bankruptcy elects to pay the secured portion of a loan, allowing the debtor to keep the property, while, discharging the unsecured portion of the debt. The debtor pays an amount...

How the Automatic Say Can Help You

Are financial difficulties looming over your head and you’re considering filing for bankruptcy? You've probably heard of the term "automatic stay," but what exactly does it mean? Let’s talk about the concept of the automatic stay and explain its significance during bankruptcy proceedings. Understanding the purpose of the automatic stay When you file for bankruptcy, an automatic stay is put into effect immediately. Essentially, this is a legal restriction that stops most creditors from taking any further action to collect debts from you. The automatic stay is a fundamental piece...

CURRENTLY NON-COLLECTIBLE STATUS

How do you qualify? you must prove to the IRS that you can't afford to pay. You might be eligible for CNC if: Your monthly expenses are more than your income; or Your income barely covers your expenses; or You have no income; or Your only income is Social Security, welfare, or unemployment When you speak with an agent, explain your situation. Make sure to be clear that you cannot afford any payments (rather than just being unable to pay the full amount). The agent may try to offer you...

CURRENTLY NON COLLECTIBLE

Currently non-collectible or uncollectible status is when the IRS or NYS agrees to take a monthly payment of $0 because he or she does not present the ability to make any payments. These are evaluated every year or two. You may be eligible for currently non collectible status if: Your monthly expenses are more than your income; or Your income barely covers your expenses; or You have no income; or Your only income is Social Security, welfare, or unemployment. You will have to disclose all of your income and assets,...

IRS Installment Agreement (IA)

IRS- 1-800-829-1040 (I) / 1-800-829-4933 (B) Request to pay in instalments by attaching form 9465 to your return orany notices you receive from IRS. Internal Revenue ServicePO BOX 219236, STOP 5050 Kansas City, MO 64121-9236 IRS. GOV/PAYMENTS  To Qualify? If you are an individual, you may qualify to apply online if:  Long-term payment plan (installment agreement): You owe $50,000 or less in combined tax, penalties, and interest, and filed all required returns. Short-term payment plan: You owe less than $100,000 in combined tax, penalties, and interest. Taxpayer must have filed...

GAMBLING WINNINGS: Owing taxes is a sure bet

Jonny Xavier is a typical twenty-year-old dude who lives with his parents in Long Island, NY. Living at home provides him with the ability to save money so that one day he will be a homeowner. He is working full-time at the Amazon fulfillment center where he oversees picking and packaging orders before they are sent out for delivery across the island. Jonny also works for extra money on the weekends with Amazon Flex, which allows him to use his own car to make deliveries of Amazon packages. With consistent...

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