LIEB BLOG

Legal Analysts

Thursday, May 31, 2012

Foreclosure - Early Certification - Eliminating the Shadow Docket

This past week a proposal was made to change the process of foreclosure litigation in NYS. Lets learn about it now:

Currently, the process for a lender / servicer to foreclose a residential mortgage is as follows:

Currently:
Plaintiff's attorney will file the foreclosure action (summons and complaint), get an index number and serve process, but before the matter is assigned to a Judge or put into the mandatory Foreclosure Settlement Conferences where the parties are instructed to work towards a modification, the lender's / servicer's attorney will be required to swear to the truth of the documents submitted by way of an affidavit. Yet, many attorneys first learn at this stage that they have insufficient facts to permit them to swear to these facts and the matter stays in limbo without assignment to a Judge or access to the Foreclosure Settlement Conferences. As a result, many foreclosure actions exist, but are not moving forward towards resolution - this is called the Shadow Docket.

Amendment:
Recently, the Office of Court Administration has proposed the following amendment to the Civil Practice Law and Rules (CPLR) to eliminate this Shadow Docket & expedite the foreclosure process. Under the amendment, if adopted, the residential mortgage foreclosure process will become as follows:

Proposed Process:
A lender's / servicer's attorney will execute a certificate of merit coupled with their summons and complaint at the time that they first get an index number. This certificate of merit will certify that the attorney has reviewed the facts of the case and that, based on consultation with authorized representatives of the plaintiff and the attorney's review of pertinent documents, including the mortgage, security agreement and note or bond underlying the mortgage executed by the residential defendant and all instruments of assignment, if any, or any other instrument of indebtedness, there is a reasonable basis for the commencement of such action.

Analysis:
If approved, this amendment will result in the elimination of the shadow docket and greatly minimize foreclosure defense tactics by attorneys. The entire effect of the amendment is to place the certification requirement earlier in time as opposed to what currently happens - instead of during the action, the certification will occur as an incident of commencement. Yet, this is a good thing for homeowners because they will not be dragged into foreclosures until the lender / servicer has a reasonable basis to commence the action. Moreover, this will result in more homeowners having access to the Foreclosure Settlement Conferences early in the process avoiding the unnecessary accumulation of excess interest & penalties following default while they remain existing in the shadow dockets.

Lieb School and the Long Island Education Board support this proposed amendment.

Wednesday, May 30, 2012

Do I need permission to photograph a building or a home?


The answer is maybe and the law on the topic can be found at 17 USCA 120(a), which states: 

Pictorial representations permitted.--The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

So the question now becomes:
First if the building or the home is an architectural work? &
Second if the building or the home is located in or ordinarily visible from a public place? 

To address the first question, one must analyze the Architectural Works Copyright Protection Act (AWCPA).

To address the second question, one must analyze the facts on how & from where the Architectural work was photographed inclusive of the location and topography surrounding the structure.

With respect to the first question, the term architectural work is defined at 17 USCA 101 as "is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features."

Moreover, the AWCPA does not extend protection to architectural works constructed before 12/1/1990. So, these buildings or homes can be photographed, without authority from the owner / architect, regardless if the picture is taken from a public place.

In a nutshell, it is likely that one can take pictures of a building or a home from the street anytime without permission, but be wary about going behind hedges or gates to get your best angle. 

If you have a particular scenario that is unique, you should always consult an attorney and obtain tailored legal advice.

Happy Photographing!!!

Tuesday, May 29, 2012

I love real estate - my Shelter Island visit

For Memorial Day weekend my wife and I stayed at The Ram's Head Inn on Shelter Island and I was reminded of why I work in this field of law in the first place.

As we disembarked from North Ferry, leaving Greenport, our eyes hit the artwork that is Shelter Island real estate. Modern, contemporary, stately, each home called to me with a challenge to understand its story. Some were the places of artists; others corporate tycoons; still more were the homes of retirees who had stumbled upon the Island years ago while on vacation and promised it a more permanent return. There were also the farms, which remain in full function amidst the compounds and retreats that have been claimed by New York City's elite. Also, one cannot think of Shelter Island without discussing its dedication to nature which is embodied by the Mashomack Preserve, a landmass that comprises roughly one-third of the entire Island.

There were old homes, hundreds of years past their prime; new mansions on the sides of cliffs; and bungalows reminding you that you were at the beach. Yet, what is truly miraculous about Shelter Island real estate is how the homes exist in harmony with the natural topography. You see Shelter Island real estate exists on the land, in the land and with the land; not on a flat surface of plowed forest that unfortunately has become much of suburban realty. The trees, from the time of the Native Americans sprawled, the creeks glistened with sunshine and the mirror of the homes standing at its shores. A look in the water reviewed a Gothic Revival, than in the pond around the bend you would see a Victorian in its luster. Everywhere, it felt like there was candy for your eyes.

Yes, real estate is not merely this beauty. It is also reviewing the Town Code, construction contracts, and memorandums of sale. Often times we focus on the sanitation systems or the Wetland Permits. In so doing its easy to forget the bigger picture. Real estate is lasting. It is defining. The results are uplifting. Its energy is alive. Once and a while we need to stop reading the rules and just enjoy the fruits of our labors. Go visit Shelter Island and become rejuvenated and find your passion for why you work in this field in the first place. Take a drive, rent a bike or moped and just peek your head into each and every driveway. Shelter Island is a real estate museum. Enjoy the sites.

Wednesday, May 23, 2012

LIEB SCHOOL OFFERS FREE CE on Friday 6/1 at LIREBR (Long Island Real Estate & Business Renaissance)


LIEB SCHOOL OFFERS FREE CE
on Friday 6/1 at LIREBR
(LONG ISLAND REAL ESTATE & BUSINESS RENAISSANCE)
 



LIEB SCHOOL
presents...
on
Friday June 1st, 2012 at 10:00am
in Melville NY.

 Advanced Online Registration Only: http://www.liebatlaw.com/realestateschool

This FREE 3 Credit Real Estate Continuing Education Class is sponsored by
  
The LIREBR is a Real Estate Industry Convention taking place on Friday June 1st and Saturday June 2nd 2012. The convention includes over 70 hours of seminars, panel discussions and credit earning classes with over 200 exhibitors of real estate related products and services. This event will bring together companies from the real estate industry:

Residential Real Estate, Commercial Real Estate, Construction & Development, Franchising & Business


LIREBR EVENT DETAILS:
   
Friday June 1ST  8:00AM-5:00PM
Saturday June 2ND 8:00AM-3:00PM

 LOCATION

Hilton Long Island
598 Broad hollow Road 
Melville, NY 11747

LIREBR ATTENDEE ADMISSION $ 10*
Registration: www.lirebr.com


LIEB's real estate continuing education course entitled
is FREE for pre-registered students.


Admission to any other seminar or the LIREBR expo itself requires a $10.00 fee paid in advance or a $20.00 at the door. To register for the expo go to http://www.lirebr.com


Is paying a landlord's mortgage the same thing as rent?

The Nassau District Court answered this question with a strong no unless "the parties specifically agree otherwise". In this situation, a landlord would be wise to embody this agreement in a lease otherwise they will not be able to look to a Summary Proceeding for an eviction.

The lesson is to always write every aspect of a landlord / tenant understanding in a lease prepared by an attorney.