Family Law

• Divorce
• Child Support
• Spousal Support
  Some categories of debt are not dischargeable in bankruptcy. Most student loans, taxes and child and spousal support are not dischargeable. However there are exceptions in that “undue hardship”, which is extremely difficult to prove, can potentially allow the discharge of student loans. Income tax debt that is older than 3 years and where the debtor had filed a tax return 2 years before the bankruptcy filing, is also potentially dischargeable. However, sales and withholding taxes, as fiduciary taxes, are never dischargeable. Child and spousal support are generally not dischargeable, although there is potentially a very narrow and hard to prove exception in the case of a settlement, as distinguished from a payment obligation. Some acts make debt not dischargeable such as fraud, a crime, a malicious injury, and the concealment of assets in a bankruptcy case. In some cases the creditor or trustee must file an adversary proceeding within 60 days after the first scheduled creditors’ meeting in order to potentially object to the discharge. Such adversary proceeding is a contested proceeding within the bankruptcy case.

Criminal Law

• Restraining Order
  An “Emergency Order to Show Cause for a Stay Pending Appeal” is an expedited motion which seeks to stop the foreclosure action and usually a foreclosure sale pending appeal. The defendant often has an urgent need for a stay before the appeal gets decided which could be prolonged, often 1-2 years. Therefore an Emergency Order to Show Cause can be made in either Supreme Court or the Appellate Division. The Appellate Division may grant, modify or limit a preliminary injunction or temporary restraining order pending an appeal…..” CPLR 5518 and CPLR 6301. A stay without a court order, under CPLR 5519(a), is available in appeals where the appellant deposits an appropriate monetary amount with the court as an “undertaking”, which would be returned to the appellant contingent on their success in reversing the lower court determination. However, should the appellant lose, the undertaking would be used to compensate the Appelle. Most stays pending appeal, however, require a court order, either from the Supreme Court or from the Appellate Division. CPLR 5519(c).

Business and Corporate Law

• Business Disputes
  The issuance of the loan, as a predatory loan, violated the Federal Truth in Lending Act (“TILA”), 15 USC §1601 et. seq. and it’s implementing regulations the Federal Reserve Board Regulation Z, 12 C.F.R § 226, the Real Estate Settlement Procedures Act (RESPA), 12 USC § 2601 et. seq., the Deceptive Practices Act General Business Law §349, General Obligations Law §5-501 and the Home Ownership and Equity Protect Act.

Property Law

• Real Estate Litigation
  Negotiation and Settlement Department – The modification department broadly deals with all negotiations (other than mortgage loan modifications), settlements, transactional matters, real estate matters, surrogate court matters and miscellaneous matters relating to debt resolution. This department is very broad in that most matters can be negotiated.
• Real Estate Transactions
  Real Estate Sales and Short Sales are options to every property holder having trouble with mortgage arrears and/or having hardship paying their monthly mortgage payments. A real estate sale and short sale are both voluntary, as opposed to a foreclosure sale which is not voluntary. The difference between a regular real estate sale and a short sale is in the regular real estate sale the seller comes out of the closing with proceeds, while in the short sale there is negative equity (in that the payoff on the mortgage exceeds the sale price of the property) and to allow the deal to go forward the lender needs to agree to take a reduced payoff at the closing. All these types of sales could be to a Third Party Buyer, who would then want the seller to move out, or they could be to a Friendly Buyer, who would let the seller remain at the property until it has the credit to repurchase the property.
• Land Use and Zoning
• Landlord-Tenant Disputes
  Landlord Tenant Solutions – This section on Landlord Tenant law includes subsections on the following: Landlord Tenant Litigation, Landlord Tenant Bankruptcy, and Landlord Tenant Negotiations;

Health Law

• Personal Injury
  In New York State we are currently able to select from either the exemption scheme offered under New York State law (where the amounts are valid April 1, 2021 – March 31, 2024) or the exemption scheme offered by federal law (Where the amounts are valid as of April 1, 2022 – March 31, 2025). The New York State exemption scheme is generous in its “homestead exemption” or in protecting a client’s residence for the amount of $179,950 per person owning and actually living in the home on Long Island, New York City and/or Westchester, NY. The federal exemption scheme applying to cases filed after April 1, 2022 is different than that of NYS, in that the federal homestead exemption is only $27,900. for individuals and $55,800 for spouses who co-own property, but there is a federal wildcard exemption that is more generous with better protection for personal property than that of NYS in that it gives a “wildcard” exemption of $1,475 plus up to $13,950 per debtor of any portion of the federal homestead exemption not used. The NYS wild card is only $3,575. The wildcard exemption can be used towards protecting any item of personal property, including tax refunds, bank accounts and vehicles. Other exemptions are for vehicles ($4,450 under the federal exemptions, or $4,825 under the NYS exemptions), household goods ($14,875. under the federal exemptions, or $11,975 under the NYS exemptions plus certain additional amounts for specific items ), personal injury awards ( $27,900. under the federal exemptions for actual physical loss and/or $9,000 under the NYS exemptions for actual physical loss), jewelry ($1,875. for jewelry under the federal exemption), whole life insurance policy surrender value ($14,875. whole life insurance surrender value under the federal exemption) and tools of the trade ($2,800. for tools under the federal exemptions or $3,575 under the NYS exemptions)

Trusts and Estates

• Estate Planning
  7) Death of the Borrower/Owner and Foreclosure Against Heirs – Often the borrower and owner of the home passes without a will and the loan goes into default without a clear owner of the home, although family may continue to live at the property and may desire to stay and keep the property and resolve the mortgage issues. Often for the lender there are service of process issues in determining which relatives to serve with process and to caption as defendants in the foreclosure action. We can defend these litigations but often we also try to resolve them by helping resolve estate administration issues. Where there is a will it is clearer who is the new owner of the property and it is easier for us to have a new legally designated owner who can defend and/or attempt to resolve the foreclosure, seek a modification, file a Chapter 13 case or otherwise engage to save the property. However, where there are numerous potential heirs, it is harder for the lender to serve process and foreclose, but it is also harder for the relatives remaining at the property to engage the lender in an effort to save the property from foreclosure. Often our office grapples with these situations and finds ways through a combination of foreclosure litigation defense, surrogates court efforts and/or negotiations to save the property for the heirs remaining at the property.
• Power of Attorney
  Attorney and lender communications should be consistent – Attorney and lender letters, notices and documents should be consistent and clear as to who is the ”owner”, ”servicer”, ”has power of attorney” and who the attorneys are representing and which entity they believe has standing.

Finance Law

• Bankruptcy
  If the principal balance of your first mortgage is more than the appraised value of your home you may be able to eliminate your second mortgage in a chapter 13 bankruptcy through a procedure called a “cramdown.” In this procedure your second mortgage is acknowledged as being wholly unsecured and is treated the same as the rest of your unsecured debt. For most chapter 13 debtors this means you only pay back a fraction of what you owe on the second mortgage over a period of 3-5 years.
• Foreclosure
• Tax Law
• Debt Collection
  Litigation Defense is more general defense of our clients in the state court system against various collection actions, including litigation over credit cards, personal loans, tax debt, business loans, student loans, medical debt and other obligations. Litigation is generally a means to hold off a resolution in favor of the plaintiff in a debt collection matter and buys time and leverage for the defendant to seek a resolution. We can litigate and defend and/or initiate most commercial litigation, although our area of specialization is litigation where we we engage in debt defense, or defending against the pursuit and collection of debt by raising issues with the instruments themselves, the proof for the debt, the methods of collection and/or with litigation procedure. The litigated defense of debt, may in itself win in making the debt uncollectible but it is also a tool that ultimately helps us better deal with debt.