You Know That Your Mortgage Payoff # Is Wrong - What Should You Do?

Here is the scenario - You are trying to sell a property and you order a payoff from your mortgage company, but that payoff quote comes in much higher than you believe that it should. 

You are in a real bind. 

You need to sell, but you don't want to overpay. What should you do?

This is particularly problematic where you are in default on your mortgage and the lender has started tacking on exorbitant penalties and attorneys' fees.

The answer is that you better protest the payoff, in writing, while requesting an itemization and then, you should pay it anyway. 

If you do, you can then file a motion for an accounting and ask the court to compute the appropriate fees, charges, expenses, and other payments due under the mortgage. 

If you don't, your motion to the court for an accounting will probably be denied in light of the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting.

Again, protest and pay is the strategy based upon the appellate court decision in US Bank v. Cordero. 

Are you selling a house in foreclosure? If so, pay attention. 

Implicit Bias Discrimination Trainings in the Face of EO 13950 Restriction

Anti-discrimination trainings start with learning that we all have implicit biases. However, President Trump had blocked training this topic by Executive Order in many different situations. Well, the federal courts took none of that and have permitted implicit bias trainings again. Andrew Lieb provides an update in the Suffolk Lawyer, Law Journal.

Read the full published article HERE.

Construction GCs Should Videotape Their Worksites to Avoid Lawsuits

Typically, when a construction worker gets injured on the job from an elevated fall, it's a slam dunk case against the GC. 

In fact, Labor Law § 240(1) imposes strict or absolute liability on general contractors, owners, and their agents regardless if the injured worker is partially at fault for falls at construction sites. 

The only real defense for the GC is that the injured worker was the sole proximate cause of the accident (called the, "recalcitrant worker" defense). But, how do you prove sole cause when everyone claims different facts? 

We just learned the answer in an appellate division case, Cordova v 653 Eleventh Ave. LLC.

The case was dismissed because "Surveillance footage of plaintiff falling from the ladder demonstrates that" it was solely the injured worker's fault. The ladder didn't move or shake, it was connected to the sidewalk bridge and scaffolding above and tied to the scaffold too. 

Moving forward, GCs should video your construction sites. It can save you a fortune. 

Employees in the NYC Fast Food Industry Will No Longer be Considered "At-Will"

The NYC Council enacted two bills which effectively ended "at will" employment for employees in the New York City fast food industry. Mordy Yankovich, Esq. shares the updates to the law in the February issue of the Law Journal, The Suffolk Lawyer.

Click HERE for the link to the article.

Court Rules that Ryan Serhant is a Salesman Trying to Sell Real Estate

The Southern District of New York reminded purchasers of real estate in Coppelson v. Serhant that real estate agents are, in fact, trying to sell real estate so they can earn a commission and will make statements to buyers intended to accomplish that goal. 

The plaintiffs, purchasers of an investment property in Manhattan, complained that Ryan Serhant misrepresented that the property would be worth over $5M in a short period of time and that that it was priced 20% lower than comparable properties. The court, in dismissing the case, reminded buyers that they can, and must, perform their own due diligence because sellers of real estate will always talk up how great their property is and because "few sellers will state that the property is priced at an unfavorable level and that it will decrease in value or has no real investment potential." This conclusion is obvious - brokers will engage in puffery to sell real estate and earn a commission, and the courts won't protect your naivete. Whether that is good for business or good for building relationships of trust is another question for another day. 

Another important takeaway from this case is the reminder that a broker's failure to follow the requirements of RPL §443 (e.g. improperly filling out an agency disclosure form) is not the basis for a lawsuit. This is something I encounter nearly every day - buyers discovering something unpleasant about their property after they close and then suing the broker for not telling them about it and for not disclosing that they represented the seller too ("the broker didn't tell me about the oil leak in the basement because they wanted their commission!"). Often there is not actually a dual agency relationship because it is perfectly fine for a broker to only represent the seller with the buyer remaining unrepresented, but many buyers believe the listing broker they met at the open house or showing represents their interests too (hence the intended purpose of the RPL §443 agency disclosure requirement). Regardless, the sole remedy for agency disclosure violations is regulatory action by the Department of State, not a lawsuit.

All of this begs the question, is the current state of regulatory enforcement sufficient to protect consumers from what they perceive as wrongful salesmanship and flat-out incorrect agency disclosures? If not, what would you change?