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Showing posts with label coronavirus legal updates. Show all posts
Showing posts with label coronavirus legal updates. Show all posts

Thursday, April 09, 2020

New York State Courts Release Reopening Details

coronavirus , coronavirus legal updates
New York State Courts Release Reopening Details
As expected, Chief Administrative Judge Lawrence K. Marks has issued a new administrative order detailing the first stage of court operations for nonessential matters. A full copy of the order can be read HERE.

      1. Judges will commit themselves to deciding fully submitted motions in pending cases. 
      2. Judges will examine their dockets to find matters through which video conferencing can be helpful in resolving the matter. Parties may request a similar conference, where appropriate.
      3. Judges may conduct discovery and other ad hoc conferences to resolve disputes which should not require the filing of motion papers.

The Order also contains an important clarification and limitation: litigants may NOT file any new nonessential matters, and parties may NOT file any additional (new) papers in any pending nonessential matters.

This means no new motions, no new answers, no motion opposition papers, etc. Previous orders tolling deadlines in those matters still control. Currently deadlines are tolled by executive order of Governor Cuomo through May 7, 2020. 

Expect expansion of the courts' capabilities and filings in the near future after successful implementation of this phase.

Reminder that federal courts are still open and capable for accepting new matters and Lieb at Law attorneys are still litigating where court intervention is not needed. 

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Tuesday, April 07, 2020

Deeds & Estate Documents - Electronic Witnessing Now Permitted

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Deeds & Estate Documents - Electronic Witnessing Now Permitted
Through Executive Order 202.14 and effective from April 7, 2020 to May 7, 2020, the act of witnessing as required in signing a will, healthcare proxy, disposition of remains, recording of instruments regarding real property, power of attorney and living trusts may now be done through audio-video technology.

To do so, the following requirements must be satisfied:
  • The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
  • The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
  • The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
  • The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
  • The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

Similarly, video notarization has been permitted since March 19, 2020 through Executive Order 202.7, which we blogged about HERE.

This is one major step closer to remote real estate closings and estate planning.

Now, the NYS legislature needs to make this permanent and not let Coronavirus innovation be a wasted opportunity.


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Penalties for Violating Executive Orders on Coronavirus Expanded AGAIN

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Penalties for Violating Executive Orders on Coronavirus Expanded AGAIN
By Executive Order 202.14, Governor Cuomo enacted new penalties for violating Coronavirus Executive Orders, in addition to what we discussed in our blogs - Penalties for Keeping Your Real Estate Opened in Coronavirus Expanded and What Happens When You Ignore the Essential Services Executive Order. 

The new penalty order states as follows:
The enforcement of any violation of the foregoing directives on and after April 7, 2020, in addition to any other enforcement mechanism stated in any prior executive orders, shall be a violation punishable as a violation of public health law section 12-b(2) and the Commissioner of Health is directed and authorized to issue emergency regulations. The fine for such violation by an individual who is participating in any gathering which violates the terms of the orders or is failing to abide by social distancing restrictions in effect in any place which is not their home shall not exceed $1,000.
You've been warned. 


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New York State Courts Are Reopening for Non-Essential Matters

coronavirus , coronavirus legal updates
New York State Courts Are Reopening for Non-Essential Matters
New York State courts are reopening.

On April 7, 2020 Judge Marks issued a memorandum to all trial court justices and judges outlining his plan for reopening the trial courts to non-essential matters beginning on Monday April 13, 2020. A full copy of the memorandum can be found HERE.

Judge Marks' April 7, 2020 memorandum states:

Going forward, the existing prohibition on the filing of new non-essential matters will continue. However, although our planning is ongoing, starting next Monday, April 13, we will take certain preliminary steps to open up access - remote access - to the courts for non-essential pending cases. This means that judges should review their case inventories to identify cases in which court conferences can be helpful in advancing the progress of the case, including achieving a resolution of the case. Judges can also schedule conferences at the request of the attorneys, and can be available during normal court hours to address discovery disputes and other ad hoc concerns. The conferences will need to be conducted remotely, by Skype or by telephone. Judges' personal staff will be able to assist judges remotely, as needed.

New York State courts have been closed to non-essential matters since March 22, 2020 when Chief Administrative Judge Lawrence K. Marks issued Administrative Order 78/20, which we blogged about HERE.


What will change on Monday, April 13?
Immediately, it appears that the courts are finding success in their remote operations for essential matters are looking to expand those capabilities to non-essential matters which make up the bulk of the caseload in the trial courts. Not only does the memorandum permit judges to conduct remote conferences on cases that are already pending before them, it encourages them to do so. Judges can schedule conferences and parties can request them as well.

The memorandum advises judges to examine their calendars, prioritize cases that will benefit from conferences, decide pending motions to clear backlogs, and to reduce their dockets while there are no new filings.

The big takeaway is that judges' chambers will be staffed and operational - conducting conferences and resolving motions to help clear their dockets. Your pending lawsuits are no longer frozen and progress will be made.


What don't we know?
There are some key limitations in this memorandum that cannot be overlooked:

Going forward, the existing prohibition on the filing of new non-essential matters will continue.

It is clear that as of now, you cannot commence a new action in NYS courts (you can commence a new action in the Federal courts). That means no new lawsuits in NYS courts. It is not clear, however, if that means you can file new papers on pending actions. For instance, it is unclear if you are permitted to file a new motion on a pending action, or even an answer to a complaint that was already filed and served. For now, existing administrative and executive orders tolling time limitations still control.


What to expect going forward.
Judge Marks realizes that a total freeze on court operations is unnecessary. While in-person appearances in a judge's courtroom or chambers are sometimes necessary for a civil matter in the Supreme Court, it is rarely mandatory. Remote conferences can handle most preliminary conferences, discovery disputes, and status conferences. In-person appearances are unnecessary to resolve most motions, and oral argument can be conducted over Skype, Zoom, etc. Civil parts in the Supreme Court can operate at nearly 100% capacity without opening their doors to the bar. 

I expect Judge Marks to reopen the civil parts of the Supreme Court in stages, gradually increasing their capacity until everything except trials can move forward while the rest of the country remains closed due to COVID-19. 

Courts that heavily rely upon in-person appearances, such as landlord-tenant court and the housing court, will be slower to reopen, but those actions are stayed anyway so there is less emphasis on figuring out remote operations for those parts. 

Look for continuing guidance from Judge Marks and local administrative Judges later this week and early next week.


Can any of this become permanent?
It is no secret that it is exceptionally difficult to force large institutions to adopt opportunities presented by advances in technology. For example, even though we have electronic filing, attorneys still need to appear in person to file physical motion papers in some courts that are too stubborn to change their old procedures. Even though some states permit telephone conferences, some courts in New York force attorneys to appear in their courtroom just to tell the judge that they are on schedule with their discovery and don't need any help from the court. That is a waste of time, money, and the courts' limited resources.

Perhaps the changes forced by COVID-19 will open the courts' eyes to the increased efficiency and productivity that technology can bring to our stubborn industry. Listen to our podcast about the future of the courts HERE - Court System is Archaic | Modernization Needed ASAP.



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Friday, April 03, 2020

Paycheck Protection Program - Regulations Explained

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Paycheck Protection Program - Regulations Explained
The Coronavirus Aid, Relief, & Economic Security Act (CARES Act), signed into law on 3/27/2020, includes expeditious relief for America's small businesses through loans funded at $349 billion.

§1102 of the CARES Act establishes the Paycheck Protection Program (PPP) under the SBA 7(a) Loan Program & §1106 provides forgiveness of up to the full principal of loan.

To fulfill the expeditious intent of providing relief to small businesses, the SBA issued its final rule on 4/2/2020 without the typical 30-day delay for effectiveness. 

We will be discussing the PPP in great detail on Real Estate Investing with Andrew Lieb this Sunday at noon on LI News Radio (WRCN / FM103.9) - If you are in business, don't miss this important segment - it could save your financial life. 

Here is a Summary of the Interim Final Rule found at 13 CFR Part 120: 
  • Loan Terms:
    • No collateral
    • No personal guarantee
    • No fees
    • Loan payments deferred 6 months (interest accrues)
    • 2-year maturity
    • 1% interest rate
    • Maximum loan $10MM
  • Loan Amount (calculation methodology):
    1. Aggregate payroll costs from last 12 months
    2. Subtract amounts paid to employee over $100K
    3. Divide net of steps 1 & 2 by 12
    4. Multiply step 3 by 2.5
    5. Add outstanding amount of an Economic Injury Disaster Loan made from 1/31/2020 to 4/3/2020 less advances
  • Loan Forgiveness Availability:
    • Employees are on the payroll for 8 weeks 
    • Money used for payroll, rent (lease dated before 2/15/2020), mortgage interest (obligation incurred before 2/15/2020), or utilities (service agreement before 2/15/2020)
    • 75% of loan forgiven must be used on payroll
    • Payroll includes:
      • Small business = Salary, wages, commission, cash tips, vacation / parental / family /medical / sick leave, allowance for separation / dismissal, employee benefits (health / retirement), state / local employment tax
      • Independent Contractor = wage, commission, income, or net earnings
    • Payroll doesn’t include: 
      • Employee with principal residence outside US
      • Salary over $100k (prorated)
      • Fed employment tax from 2/15/2020 to 6/30/2020
      • Qualified sick & family leave wages
    • To prove proper payments, lenders can rely on borrower’s documentation without any verification requirements
  • Application:
    • SBA Form 2483 (lender submits SBA Form 2484)
    • Applicant certifies that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the applicant.
    • Available from 4/3/2020 to 6/30/2020 or until exhausted
    • Borrower can only get 1 loan
    • First-come, first service
    • E-signature / consent permitted
  • Eligibility:
    • Must be small business, non-profit, independent contractor (sole proprietor)
    • Must have < 500 employees (certain exceptions if bigger) with principal place of residence in US
    • Must be in operations on 2/15/2020 with W2 employees
    • Must submit proof of eligibility of:
      • Payroll processor records
      • Payroll tax filings
      • Form 1099-Misc
      • Income & expenses for sole proprietorship
      • If don’t have above, bank records to demonstrate qualifying payroll
  • Ineligibility:
    • You are engaged in illegal activity under federal, state or local law (no legal marijuana) 
    • Household employer of nannies / housekeepers
    • Owner of 20% or more is incarcerated, on probation / parole, subject to indictment, criminal information, arraignment, or convicted of felony in last 5 years
    • Delinquent / defaults on SBA loan within last 7 years
  • Misuse Penalties:
    • Knowingly using loan for unauthorized purposes is fraud
    • False statements on application is up to 5 year imprisonment / up to $250K fine + up to 2 years imprisonment / up to $5K fine + up to 30 years imprisonment / up to $1MM fine
  • Lenders Fees Paid from SBA:
    • 5% of loans up to $350K
    • 3% of loans over $350K & less than $2MM
    • 1% of loans at least $2MM  
  • Agent Fees Paid by Lender from its Fees:
    • 1% of loans up to $350K
    • 0.5% of loans over $350K & less than $2MM
    • 0.25% of loans at least $2MM
·        Questions should be made to Lender Relations Specialist at the local SBA Field Office 




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