There are so many get-rich-quick schemes for investing hard-earned savings in real estate to generate a huge passive income through rentals. Wake up--nothing in life is always roses, and not everyone can be Kiyosaki's Rich Dad. This is the list of the Top 5 litigation issues that income-producing property owners face incident to living the landlord's dream.

Full article in The Huffington Post, written by Andrew Lieb, Esq. here. 

New York County, Supreme Court, recently published a case opinion by initially referencing the plight of many homeowners in the first paragraph as follows:

"They have been thwarted by unresponsive loan servicers, unprepared lawyers, boilerplate form letters, and the banks' or servicers' often-changing and repetitive demands for financial information."

Sound familiar?

In the case, the Court reduced interest to 2% during the time that it found the lender acted in bad faith. This opinion is legally important because it expands the time of its interest sanction to pre-settlement conferences, but more so, its functionally important for borrowers because the opinion represents a terrific explanation of the current law governing mortgage modifications.

The law is set forth in detail below:



In reaching its decision, the Court, laid out the law as follows:

Duty Post-Default:
"3 NYCRR 419.2 establishes a "duty of good faith and fair dealing" by mortgage loan servicers in connection with their transactions with borrowers. This duty requires that servicers "make borrowers in default aware of loss mitigation options and services offered by the servicer in accordance with section 419.11" (3 NYCRR 419.2 [e]). This duty also requires servicers to "provide trained personnel and telephone facilities sufficient to respond promptly to borrower inquiries regarding their mortgage loans" (id., 419.2 [f]), and to "pursue loss mitigation with the borrower whenever possible in accordance with section 419.11" (id., 419.2 [g]). Part 419.11 creates an obligation on the part of servicers to make reasonable and good faith efforts to pursue appropriate loss mitigation options, including loan modifications as an alternative to foreclosure. Notably, section 419.11 (d) requires that servicers must complete their review of a borrower's eligibility for a loan modification or other loss mitigation options and advise the borrower or their representative of the determination in writing within 30 days of receiving all required documentation. Finally, section 419.11 (i) creates a good faith presumption on the part of servicers if they offer loan modifications in accordance with HAMP guidelines."

Duty Post-Commencement of Mortgage Foreclosure Action:
CPLR 3408 (a) and (f) read, in pertinent part, as follows:
"(a) In any residential foreclosure action involving a home loan . . . in which the defendant is a resident of the property subject to foreclosure, the court shall hold a mandatory conference . . . for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan[*8]documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate.
.....
(f) Both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible."

To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408 (f), a court must determine that "the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution" (US Bank N.A. v Sarmiento, 121 AD3d 187, 203 [2d Dept 2014]). Following the adoption of CPLR 3408, the Chief Administrator of the Courts promulgated regulations setting forth the rules and procedures governing CPLR 3408 settlement conferences (see 22 NYCRR 202.12—a). This regulation requires that "[i]f the parties appear by counsel, such counsel must be fully authorized to dispose of the case" (22 NYCRR 202.12-a [c] [3]).


Next, the Court laid out its options in sanctioning violations of CPLR 3408(f) as follows: 

"barring of interest on the loan for the period of time that the servicer acted in bad faith and unduly prolonged the foreclosure proceedings (see U.S. Bank N.A. v Smith, 123 AD3d 914 [2d Dept 2014] [mortgagee barred from collecting interest on mortgage for 9-month period]; US Bank N.A. v Williams, 121 AD3d 1098 [2d Dept 2014] [court canceled all interest accrued on the subject mortgage loan between the date of the initial settlement conference and the date that the parties agreed to a loan modification]; US Bank N.A. v Sarmiento, 121 AD3d at 200 [interest tolled from date mortgagor began placing $2,000 per month in an escrow fund, at the court's direction]; see also Bank of America N.A. v Lucic, 45 Misc 3d 916 [Sup Ct, NY County 2014]; U.S. Bank, N.A. v Shinaba, 40 Misc 3d 1239[A], 2013 NY Slip Op 51484[U] [Sup Ct, Bronx County 2013]; Wells Fargo Bank, N.A. v Ruggiero, 39 Misc 3d 1233[A], 2013 Slip Op 50871[U] [Sup Ct, Kings County 2013]; Deutsche Bank Trust Co. of Am. v Davis, 32 Misc 3d 1210[A], 2011 Slip Op 51238 [Sup Ct, Kings County 2011]). Because foreclosure is an equitable remedy which triggers the equitable powers of the court (Notey, 41 NY2d 1055 supra; Norwest Bank Minn., NA, 94 AD3d at 836, supra), courts have not hesitated to toll interest when it is an appropriate remedy for a [*9]mortgagee's unconscionable delay in prosecuting foreclosure actions (see Dayan v York, 51 AD3d 964 [2d Dept 2008]; Danielowich v PBL Dev., 292 AD2d 414 [2d Dept 2002]; Dollar Fed. Sav. & Loan Assn. v Herbert Kallen, Inc., 91 AD2d 601 [2d Dept 1982]; South Shore Fed. Sav. & Loan Assn. v. Shore Club Holding Corp., 54 AD2d 978 [2d Dept 1976])."

Attorneys don't need a real estate brokerage license to earn a commission. Yet, they can obtain a license by simply paying a fee without even taking the requisite 120 hour class or passing the exam. 

So, why should an attorney bother becoming licensed as a broker? The reason is that it both helps the attorney's clients to gain access to property and it also secures the attorney's ability to split a brokerage commission pursuant to a cooperative brokerage agreement.

Full article in The Suffolk Lawyer, written by Andrew Lieb, Esq. here. 

The U.S. Treasury Department has issued Supplemental Directive 15-06 “Making Home Affordable Program – Streamlined Modification Process”.

This new program is akin to the Streamlined Modifications already offered on GSE Loans. GSE or “Government-sponsored enterprise”, are privately held corporations for a public purpose such as Fannie Mae and Freddie Mac. These GSEs have had in place streamline modifications that Loan Servicers are mandated to offer to eligible borrowers. One draw-back in any type of modification with a GSE Loan is the fact that principal reduction is not offered.

This new directive is for Non-GSE Loans and the Loan Servicers and Lenders such as Chase, Citibank, Carrington Mortgage, Nationstar Mortgage and so many others. The streamline modification provides a modification opportunity to delinquent borrowers of Non-GSE Loans without the need to submit any docs or for any income verification. In fact, once a Loan Servicer has designated its pool of eligible borrowers a Streamline HAMP Trial Period Plan Offer will be issued to the Borrower. The only thing for the Borrower to do is make the first payment to enter into the trial period. This will greatly improve the approval process for those Borrowers that are directly designated and free up resources for those borrowers that may not be eligible by lessening the modification approval time frame. The bonus is that in Non-GSE modifications, principal reduction can, and may be included in the modification.

Eligible Borrowers will only learn of this from their Loan Servicers directly by mail. Be sure to keep an eye on all mail received from your Loan Servicer to see if you are in luck. Regrettably, if a Borrower does not fit within the specific eligibility pool they will be out of luck for streamline modifications.

Both buyers and sellers need to know what side a real estate salesperson is on in a transaction and also what duties they can expect from their real estate brokerage and salesperson while being represented.

Full article in Behind The Hedges, written by Andrew Lieb, Esq. here. 

Learn about real estate brokers' duty to disclose to those that they do not represent. Recent case creates more questions than it answers.

Full article in The Suffolk Lawyer, written by Andrew Lieb, Esq. here. 

Course:  Deal Killers - Don't Let Your Deal Die

Instructor: Andrew Lieb, Esq.

Date: July 29th, 2015 at 353 West 46th Street (between 8th and 9th avenue)

Course Summary: You get the client, spend months looking for the perfect deal, find it, negotiate it and send it to an attorney to close it. Then, what? It dies. Have you ever wondered if you could do anything differently to have more of your deals close? Learn some of the main reasons that deals die like issues with the Sales Agreement, Title, Escrow Deposit, Closing Date, Financing / Contingencies and the Seller’s Concession. Next, learn how to proactively save your deals and earn a commission. Knowledge is commission.

CE Credits: 3

To Register: Login to Your Lieb School Account and Click "Enroll" or "Join Waiting List" 

Today, in the case Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the United States Supreme Court held 5-4 (Kennedy, Ginsburg, Breyer, Sotomayor & Kagan for the majority) that disparate-impact is a cognizable cause of action under the the Fair Housing Act (FHA). In short, a plaintiff can now point to statistical evidence of discrimination in lieu of the more difficult standard of proving that the defendant had actual discriminatory intent.

In the legal world, whether under the FHA, Title VII of the Civil Rights Act of 1964, or the Age Discrimination in Employment Act of 1967,  there are two types of discrimination: disparate-treatment, and disparate-impact. Disparate-treatment typically is discriminatory on its face. For instance, when a landlord refuses to rent to women. The landlord has discriminated against a protected class and is liable under the FHA. Disparate-impact is neutral on its face, but results in statistical discrimination of a protected class. For instance, when a landlord refuses to rent to people with long hair. The landlord's policy does not on its face discriminate against a protected class, but the effect is disproportionate discrimination against women. Under the theory of disparate-impact discrimination, the landlord is discriminating against a protected class, even though that may not be his intention, and is liable under the FHA.

In the Texas Department of Housing and Communities Affairs case, the plaintiff alleged that the criteria set by the Texas Department of Housing and Communities Affairs for the distribution of tax credits intended to assist development of low income housing resulted in discrimination on the basis of race. The criteria, which was racially neutral on its face because it considered  economic factors almost exclusively, had the statistical result of higher approval rates for communities with higher proportions of African-Americans. The plaintiff alleged that the criteria resulted in the Texas Department of Housing and Communities Affairs discriminating against Caucasians under the theory of disparate-impact.

The Supreme Court, recognizing the broad expansion of liability under the disparate-impact theory, carefully established the burden a plaintiff must meet to make a prima facie showing of discrimination. That is, statistical discrimination of a protect class alone will not result in liability. First, the plaintiff must show that the action or policy results in statistical discrimination against a protected class. Second, the plaintiff must show that there is a specific policy held or perpetrated by the defendant that is causing the disparate-impact discrimination. Third, the plaintiff must show that there is an alternative practice or policy that has less disparate impact while still serving the defendant's legitimate needs.

The consequences of this ruling will be far reaching as plaintiffs attempt to link facially neutral policies to disparate-impact discrimination against protected classes. In New York, for instance, disparate-impact greatly expands the potential liability for discrimination against the numerous protected classes in our State. While the FHA has seven (7) protected classes (Race, Color, National Origin, Religion, Sex, Familial Status, and Handicap), New York State has eleven (11) protected classes (Race, Creed, Color, National Origin, Sexual Orientation, Military Status, Sex, Age, Disability, Marital Status, and Familial Status) and New York City has fourteen (14) protected classes (Race, Creed, Color, National Origin, Gender, Age, Disability, Sexual Orientation, Marital Status, Partnership Status, Alienage Status, Citizenship Status, Lawful Source of Income, and Children are, may be, or would be residing with such person). While New York City and New York State already recognized disparate-impact as a cognizable cause of action in certain circumstances prior to this most recent Supreme Court ruling, the recognition of disparate-impact under the FHA will likely cause expansion of disparate-impact theories in jurisdictions and statutes which do not specifically recognize disparate-impact as a cognizable cause of action.

The law of the land is clear - disparate-impact is just as damaging as disparate-treatment and violators cannot hide behind facially neutral policies.

Course: Agency Disclosure

Instructor: Andrew Lieb, Esq

Date: July 16th, 2015 at Newsday in Melville

Course Summary: Every broker must send their agents to this continuing education course to learn Agency Disclosure.

Last evening, Lieb School taught a continuing education course, Estate Deals, at Newsday's Headquarters to over 100 real estate salespersons from the region.

Before the class began, I told the audience about a discussion happening right now between attorneys on the New York State Bar Association's Real Property Law Section's Listserv, called "Real Estate Binders". I advised of the conclusion of the attorneys about how terrible the results are for transacting parties when they sign Sales Agreements prepared by real estate brokers / salespersons who procured the transaction without having such an agreement drafted by a competent attorney. To my shock, many brokers thought I was wrong and they insisted to continue this practice of having their clients sign this one (1) page form contract.

After reading, I hope they will rethink their position because it is quite possible that transacting parties will end up being in a binding contract by way of this Sales Agreement, which is the furthest thing from their intended goal when working with a real estate broker and/or salesperson. The case of Pescatore v. Manniello addresses such a situation wherein the Appellate Division stated that the "agreement satisfied the statute of frauds, as it identified the parties to the subject real estate sales transaction, described the realty to be sold with reasonable particularity, and it stated the purchase price of the realty, the down payment called for as well as its due date, and the balance due upon closing. The agreement also provided for a closing date, and stated that the transaction was not subject to mortgage financing. The additional fact that the agreement stated that a more formal contract was to be signed does not render the purchase deposit agreement unenforceable".

Plus, a real estate salesperson owes their client duties of loyalty, accountability and the use of reasonable care so isn't the salesperson breaching those fiduciary duties to their client by having their client enter into a contract without knowledge of its binding effect and without advising them to utilize instead the twelve (12) page "RESIDENTIAL CONTRACT OF SALE Jointly Prepared by the Real Property Section of the New York State Bar Association, the New York State Land Title Association, the Committee on Real Property Law of the Association of the Bar of the City of New York and the Committee on Real Property Law of the New York County Lawyers' Association. (11/00)", which is supplemented by a tailored Rider by most attorneys in Downstate New York.

The Sales Agreement used by many on long island is hyperlinked.

As can be seen on the face of the agreement, it states: "THIS IS A LEGALLY ENFORCEABLE CONTRACT, YOU SHOULD CONSIDER WHETHER YOU WISH TO CONSULT YOUR ATTORNEY PRIOR TO SIGNING THE SAME". Further, the Sales Agreement contains an attorney approval clause, but such clause is waived unless the Sales Agreement is disapproved by a party's attorney within "3 business days after full execution thereof". Wouldn't it be smarter to just fill out the form without having any party sign the agreement and send the information to an attorney to negotiate within a formal contract of sale?

It comes down to this: Do real estate salespersons care more about the best interest of their clients when creating a meeting of the minds or would they rather mislead the clients that it's a good idea to be in a terrible contract just so that the salesperson feels more secure about receiving a commission?

You decide.

If you are counting on rental income, you cannot let a relative stay at your place, even for the weekend.

Read Andrew Lieb's latest article in Behind The Hedges to find out why.

Ever have your neighbor's tree fall on your property? Andrew Lieb shares tips on how to handle the issue, the default rules in New York, and who is responsible...

Read the full article in The Huffington Post

To access the new Handbook for MHA, inclusive of HAMP and HAFA, click here. While reviewing the Handbook you should be aware of the case of US Bank v. Sarmiento wherein the Court held that the statutory good faith standard for a CPLR 3408 Foreclosure Settlement Conference is whether the "totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution", including compliance with the Handbook. To review the case, click here.

This Handbook is the rules for banks / servicers to modify mortgages, so pay careful attention to detail and make sure that they comply.

Andrew Lieb discussed Neighbor Issues on Real Life with John Christopher on 88.3 WPPB Peconic Public Broadcasting.

Learn the legal implications of what happens when your dog defecates on your neighbor's property.

Listen to the podcast here. 

Tune into 88.3 WPPB Peconic Public Broadcasting on Friday 5/22/15 at 5:30pm to hear Andrew Lieb and John Christopher discuss issues with neighbors and how to resolve them.

Attention Nassau County Bar Association Real Property Law Committee Members - Andrew Lieb, Esq. will be speaking on ""Top Ten Changes in Real Estate Law of 2014" at the Real Property Law Committee meeting on Tuesday, May 26, 2015 at 5:30p.m. in the Founders Room at the Home of the Association.

CLE credit is available.

Even the most affluent buyers and sellers want to save money on their real estate transactions beyond negotiating the sales price. Many find themselves shopping mortgage brokers for best rates, trying to negotiate commissions out of real estate brokers, or finding the attorney who charges the least. There are many other ways that real savings in real estate transactions are realized beyond squeezing your service providers and commoditizing their services. Instead, buyers and sellers should realize true savings by utilizing these five tips in real estate transactions.

Read Andrew Lieb's full article in The Huffington Post or Dan's Papers.

The Court of Appeals recently held that a single-family home is not “owner-occupied” for purposes of qualification in a Small Claims Assessment Review (SCAR) when such home is occupied “by an owner’s relative but not by the owner” “during the relevant tax period.” In so ruling, the court limited SCAR proceedings’ availability to fact-patterns that clearly establish occupancy by the owner.

Read Andrew Lieb's full article published in The Suffolk Lawyer.

SCAR Proceeding Owner-Occupancy Requirement

On Saturday May 2nd, Andrew Lieb, Esq. joined Dottie Herman's 'Eye on Real Estate' radio show on AM970. Topics discussed included:

• Latest Real Estate Trends
• Inheritance
• Reverse Mortgages
• Commercial Real Estate

Instructor: Andrew Lieb, Esq

Date: June 4th, 2015 at Newsday in Melville

Course Summary: Estate sales offer a unique opportunity to help the grieving by doing your job professionally. Starting with speaking the language of the Surrogate’s Court, this course will empower the real estate broker / salesperson to assist the Executor / Administrator in liquidating real property in order to satisfy debts of the estate. Additionally, disputes between beneficiaries and with the fiduciary, sales forced by the court, and foreclosures incident to the probate process will be discussed. Lastly, the student will be exposed to the overlay of brokerage and executor’s commissions where an Executor / Administrator is expressly exempt from the Real Estate License Law for Brokerage.

To Register: Login to Your Lieb School Account and Click "Enroll" or "Join Waiting List"

Instructor: Andrew Lieb, Esq

Date: May 12th, 2015 at Viana Hotel & Spa in Westbury

Course Summary: You get the client, spend months looking for the perfect deal, find it, negotiate it and send it to an attorney to close it. Then, what? It dies. Have you ever wondered if you could do anything differently to have more of your deals close? Learn some of the main reasons that deals die like issues with the Sales Agreement, Title, Escrow Deposit, Closing Date, Financing / Contingencies and the Seller’s Concession. Next, learn how to proactively save your deals and earn a commission. Knowledge is commission.

To Register: Login To Your Lieb School Account and Click "Enroll" or "Join Waiting List"

Check out Andrew Lieb's latest article published in The Suffolk Lawyer.

Andrew Lieb, Esq discusses 10 secrets to dealing with neighborly disputes.

These are the top 10 legal issues that you may face with your neighbor and how they will be resolved, in court, according to the law. Perhaps, this article will show you that a private, non-legal, neighborly, agreed-upon resolution is a better option for your predicament than turning to the courts. Then again, perhaps not.

Read the published article written by Andrew Lieb, Esq. in Dan's Papers by clicking here.

Tax Assessor James Ryan will be at the Manorville Fire Department at 14 Silas Carter Road on April 29, 2015 at 6pm.

Bring your questions as Grievance Day is May 19, 2015.