Foreclosure Tsunami Coming - Litigation Checklist

The moratorium on foreclosures expires on August 20th (EO 202.28) and a foreclosure tsunami is coming.

According to CNBC, "32% of U.S. households missed their July housing payments" based on a survey by Apartment List, which also advises that 17% of "homeowners [are] concerned about foreclosure."

To prepare for the tsunami, we are giving you our 10-Point Inspection Checklist to evaluate a foreclosure case. Whether we are representing the lender or the borrower, we utilize this list to evaluate the strength of the case, which, when coupled with an evaluation of the borrower's current mortgage terms (i.e., L/V ratio front end/back end, interest rate, principal, interest to date, penalties, attorneys' fees, months of missed payments, prior modifications/forbearances, etc.) is how we assess whether a modification, or other workout, should be considered.

10 Point Inspection Checklist:

1. Standing of plaintiff (owner / holder of note on date of commencement or authorized agent of such owner / holder pursuant to Pooling and Servicing Agreement or other agreement)
2. Record admissibility (swearing to business records of another entity; failure to attach business records to affidavits)
3. RPAPL 1303 / 1304 / 1305 / 1306 compliance
4. Acceleration / Deacceleration (statute of limitations) 
5. Notices tendered in satisfaction of note terms
6. Lis Pendens filing
7. Payment history for default calculations / date (requisite missed months for default requirement in note / aligned with notices / statute of limitations)
8. Default on Answer with time since settlement conference for late answer availability
9. Service / personal jurisdiction issues
10. Pleadings requirements (Certificate of Merit - CPLR 3012-B, RPAPL 1302)

In our upcoming Real Estate Investing shows, WRCN / FM 103.9 / Sundays at Noon, we will be breaking down this list into plain English and showing you how to litigate foreclosure cases whether you are the lender or the borrower.

No Alcoholic Drinks Without Food in NY Restaurants and Bars and Chips Don't Count

On July 16, 2020, Governor Cuomo signed Executive Order 202.52 which prohibits bars and restaurants from selling alcoholic beverages, unless it comes with the purchase of food. The Executive Order applies to on-premises consumption, take-out, and delivery and it is in effect until August 15, 2020.

A lot of mockery has been out there about this new EO. There have been arguments such as, “I can get Corona with a beer, but not with a beer and a chip.” Yet, that misses the point. The point is to make it impossible for jammed and standing bar parties. By adding a service of food requirement, the government is avoiding bar scenes that will quickly spread Coronavirus. Perhaps this is not the most effective line in the sand and there are likely better lines to draw, but whenever a law is passed, the line will create haters and fans. Better to know the line and keep your liquor license than to fight it until your bar closes, at least that is our perspective.

Restaurant and bar owners are also advised of the guidance set by the State Liquor Authority in light of the Executive Order 202.52:

- “Purchase of a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean that for each patron in a seated party, an item of food must be purchased at the same time as the purchase of the initial alcoholic beverage(s). However, one or more shareable food item(s) may be purchased, so long as it/they would sufficiently serve the number of people in the party and each item would individually meet the food standard below.

- Food and/or beverages can only be consumed while seated at a table, bar, or counter.

- “A food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean:

• For manufacturers with on premises service privileges: sandwiches, soups or other such foods, whether fresh, processed, pre-cooked or frozen; and/or food items intended to compliment the tasting of alcoholic beverages, which shall mean a diversified selection of food that is ordinarily consumed without the use of tableware and can be conveniently consumed, including but not limited to: cheese, fruits, vegetables, chocolates, breads, mustards and crackers.

• For on premises retailers with a food availability requirement, including restaurants and taverns: sandwiches, soups or other foods, whether fresh, processed, precooked or frozen.

- “Other foods” are foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hotdogs would be of that quality and substance; however, a bag of chips bowl of nuts, or candy alone are not. (Updated July 23, 2020)

The SLA further reminds restaurant and bar owners of the purpose of the Executive Order which is to ensure that customers are enjoying a sit-down dining experience with drinks, rather than a drinking, bar-type experience that often involves or leads to socializing without proper social distancing and use of masks. Further, the SLA warns that any obvious efforts to circumvent the above rules will be deemed violations of the Executive Order.

Additionally, in New York City, a “Three Strikes and You’re Closed” policy is put in effect and establishments receiving three violations will be closed for business.

However, regardless of three strikes, an immediate revocation of a liquor license or business closure may occur due to egregious violations. Restaurant and bar owners should be aware of these guidelines to avoid liability and ensure compliance.

Security Deposit Voucher Recipients PROTECTED by Source of Income Discrimination Laws

The NYS Appellate Division recently clarified that "[t]he fact that the security vouchers are a guarantee of payment, rather than a cash payment, does not render them not 'income,' as they are an item of value, worth a payment of up to one month's rent on the tenant's behalf to compensate for unpaid rent or damages to an apartment."

Landlords, brokers, and property managers be warned - you cannot deny a prospective tenant based upon the source of their money for their security deposit as well as for their rent.

Click to read the full Appellate decision, Estates NY Real Estate Servs. LLC v City of New York.

Discrimination lawsuits are everywhere, but they are easy to avoid so long as you treat everyone equally irrespective of their membership in a protected class.

If you get sued for discrimination, lawyer-up fast and watch what you say. Many defendants dig their grave when they get sued for discrimination by acting irrationally. Protect yourself and your company now with trainings at liebcompliance.com