Law Offices of Michele A. Peters, P.C.

None of the information or materials posted in this weblog are intended to constitute legal advice, nor can we guarantee the accuracy of posted information, especially as to each individual situation. The views or opinions expressed in this page are strictly those of the web-blog’s author. 

There is no dignity! SCAM alert - yes, another

February 6, 2014

From the Tax Court website homepage today, February 6, 2014:

"SCAM ALERT:  The United States Tax Court has been notified of individuals receiving an official looking letter/e-mail which appears to originate from the Court and solicits money from its recipient.

Please be aware the United States Tax Court does not solicit money via letter or e-mail.  If you are in receipt of such a solicitation letter or e-mail, please immediately report it to the Internet Crime Complaint Center 
(IC3 - www.ic3.govand your local law enforcement office." 

 

New Jersey - Legislative Update January 2014 - NJ Law Journal Reports

January 27, 2014
Laws Criminalize Online Harassment, Prohibit Pregnancy Discrimination, Tenants Can Collect Legal Fees, Drones Given Power / People Lose Rights
Reported on by Mary Pat Gallagher, New Jersey Law Journal
January 23, 2014

Gov. Chris Christie on Tuesday signed bills that criminalize cyber-harassment, ban pregnancy discrimination and require landlords to pay their tenants legal fees in some instances.

The cyber-harassment bill, A-2785, which swept through both houses unanimously on Jan. 13, makes it a fourth-degree crime to use an electronic device or social networking site to do certain things online with the purpose of harassing someone.

Effective immediately, it prohibits threatening to injure or commit a crime against a person or a person’s property or to knowingly send, post, comment or suggest “any lewd, indecent, or obscene material” to or about a person with the intent to emotionally harm them or to “place a reasonable person in fear of physical or emotional harm.”
The crime is punishable by up to 18 months behind bars, a fine as high as $10,000 or both.

For offenders older than 21 who impersonate a minor, it would become a third-degree offense, carrying as much as three to five years in jail and a $15,000 fine.

Someone younger than 16 who is adjudicated as delinquent for violating the law could be ordered to attend a class or program on cyber-harassment accompanied by a parent or guardian. It would be a disorderly persons offense for the parent or guardian not to go.
A-2785 is a response to incidents in which online attacks have driven teens to kill themselves.

Sponsors Donald Norcross, D-Camden, and Nicholas Sacco, D-Hudson, have cited the case of Megan Meier, a 13-year-old from Missouri who committed suicide in October 2006 after a 49-year-old woman pretending to be a teenage boy wrote on her MySpace page, “The world would be a better place without you.” The woman was convicted on misdemeanor counts of computer fraud for misrepresenting who she was but escaped charges for what she said because Missouri had no cyber-harassment law.

Prior to the signing, New Jersey could only pursue disorderly persons charges for Internet bullying or harassment.

Sacco stated on Jan. 13 that this “bill will make sure that our laws specifically address this conduct and that law enforcement officials have the tools necessary to prosecute individuals who participate in cyber-harassment.”
Missouri has since adopted an anti-cyber-harassment law, as have other states, such as Tennessee and Maryland.  On the other hand, Connecticut failed to vote a proposed law out of committee in 2012.

A related bill signed on Tuesday, A-2105/S-895, clarifies that the existing crimes of impersonation and identity theft encompass such acts when done using electronic communications or the Internet.

As introduced, A-2105 would have created a new fourth-degree or disorderly persons offense for online or electronic impersonation and identity, with the degree depending on whether harm resulted.

The pregnancy law, S-2995/A-4486, gives pregnant women protected status under the Law Against Discrimination, shielding them primarily in the workplace but in other settings as well.

The law, which took effect on signing, treats pregnancy like race, age, religion and other categories that enjoy legal protection and it covers not just women currently pregnant but those who have recently given birth or have pregnancy-related medical conditions.

It requires employers to provide reasonable accommodations, including bathroom and water breaks, rest periods, help with manual labor, job restructuring and temporary transfer to a position that is less strenuous or hazardous and prohibits them from retaliating against women who ask for accommodation.

Business interests dropped their initial opposition after the addition of an “undue hardship” exception based on such factors as the size and type of business and the nature and cost of the requested accommodation.

Another relevant factor is the extent to which the accommodation would involve waiver of an essential job requirement.

The law effectively overrules a 2005 state Supreme Court holding that found firing a pregnant worker whose condition necessitated more time off than allowed by the company’s leave policy did not violate the LAD. The 4-3 majority in Gerety v. Atlantic City Hilton Casino reasoned that pregnancy should be treated no differently than other medical conditions or illnesses under medical leave laws.

After the Senate approved the legislation in November, lead sponsor Sen. Loretta Weinberg, D-Bergen, noted that the federal Pregnancy Discrimination Act, passed in 1978, prohibits firing or refusing to hire on account of pregnancy but did not address the treatment of existing employees who became pregnant.

Pregnant women, especially low-wage ones, can be subjected to conditions that are unfair, unhealthy and inflexible, making them more likely to lose income, health insurance and the job itself, she added.

The only legislator to vote no on the bill was Assemblyman Michael Carroll, R-Morris, who said it provided pregnant women with special treatment.

The New Jersey Division on Civil Rights received 26 complaints of pregnancy discrimination in employment, housing and public accommodations last year, down from 32 in 2012 and less than half the 55 cases for 2005.

The legislation on tenant legal fees, S-2018/A-3851, was far more controversial than the cyber-harassment and pregnancy bills, with the votes for passage—71-9 in the Assembly and 27-11 in the Senate—largely split along party lines.
The New Jersey Builders Association opposed it, as did the State Bar Association.

With a stated purpose of ensuring parity between landlords and tenants, it requires that when the lease gives the landlord a right to recover fees and expenses, a parallel implied covenant giving the same right to the tenant is to be read into the lease.

The law applies when tenants defeat evictions or other lease-related actions brought by the landlord or when they sue the landlord successfully under the lease.

The award is discretionary and can include legal fees or expenses, or both, with expenses defined as encompassing court costs and witness expenses, but not travel, lost income or child care.
A tenant sued for unpaid rent, who pays up before judgment without asserting a meritorious defense, does not get the benefit of the reciprocal fee provision.
The law took effect on signing and applies to all residential leases signed by Feb. 1.

Going forward, leases that provide for landlord fees and expense must now contain boldface notice stating: “If the tenant is successful in any action or summary proceeding arising out of this lease, the tenant shall recover attorney’s fees or expenses or both from the landlord to the same extent the landlord is entitled to recover attorney’s fees or expenses, or both as provided in this lease.”

The typeface must be at least 11 point and one size larger than the rest of the lease clause.

When introduced in May 2012 by Sen. Brian Stack, D-Hudson, S-2018 required at least 14-point type and applied to all existing leases. The definition of expenses was also narrowed along the way.

Further, the addition in June of the provision barring fees for a tenant who pays rent after being sued allayed the State Bar Association’s concern that “the bill would create an uneven playing field between landlords and tenants by requiring that landlords pay attorney’s fees even when a breach of contract was the fault of the tenant or if the tenant cured the breach prior to the rendering of final judgment.”

It still opposed the bill, however.

One of the 44 bills that were allowed to expire on Tuesday, through the so-called pocket veto, would have imposed a warrant requirement on the government’s use of drones.

Law enforcement agencies would have had to obtain a warrant by showing probable cause in order to use an “unmanned aerial vehicle,” or drone, to conduct surveillance or gather evidence under S-2702/A-4073 absent exigent circumstances or consent.

Other exceptions applied to searches for missing people or Amber alerts and to use by firefighters or by emergency management personnel to survey or monitor an emergency situation.

ACLU-NJ executive directive Udi Ofer expressed disappointment, saying the bill “would have given New Jerseyans some of the strongest civil liberties protections in the nation against abusive drone surveillance.”

He pointed out that drones will likely be flying New Jersey skies by 2015 in light of the Federal Aviation Administration’s decision last month to authorize testing of “unmanned aircraft” in nine states, including New Jersey.

 

NY's A.G. Schneiderman Announces National Multi-Billion Dollar Settlement With Mortgage Servicing Giant OCWEN Financial Services

December 20, 2013
Close To $300 Million In Mortgage Forgiveness Will Go Directly To New
Yorkers Struggling To Avoid Foreclosure

NEW YORK - Attorney General Eric T. Schneiderman today announced a settlement with mortgage servicing giant Ocwen Financial Services over alleged improprieties by the company and its subsidiaries related to mortgage servicing and foreclosure practices. The national settlement, the result of a joint investigation by the Consumer Financial Protection Bureau, state banking regulators, and 49 state attorneys general, will bring more than $2 billion in relief to consumers in all 50 states. New York is expected to fare particularly well, with $292,716,793 in first-lien principal reductions going to homeowners across the state.

"While recent actions have brought much-needed relief to thousands of New Yorkers since the collapse of the housing market, far too many homeowners still face unnecessary challenges as they fight to stay in their homes," said Attorney General Schneiderman. "Today's settlement with Ocwen, led by the Consumer Financial Protection Bureau and a coalition of states, will bring nearly $300 million in relief to homeowners across our state-a critical lifeline for New Yorkers who have lost their homes or are suffering through a burdensome process to keep them. From the 2012 National Mortgage Settlement and last month's historic JP Morgan agreement to today's $2 billion settlement with Ocwen, regulators are finally beginning to gain traction in delivering the kind of relief needed for homeowners harmed by the conduct of banks and lenders in recent years."

The principal reductions will go to families who are in default or at imminent risk of default and whose homes are underwater. Thus, the benefits will be targeted to those who are most at risk and stand the greatest chance of avoiding foreclosure as a result of this relief. In addition to principal reductions for homeowners, the settlement will include cash payments to homeowners who lost their homes to foreclosure between 2009 and 2012 and a slate of servicing reforms aimed at improving customer service practices.

Kirsten Keefe, senior attorney at the Empire Justice Center, said, "It is very exciting that this settlement will bring nearly $300 million in principal reduction to New York homeowners with mortgage loans serviced by Ocwen. Principal reduction has been a key piece missing from the housing recovery puzzle. The Attorneys General, the CFPB and the state banking regulators are to be commended for coming together to help break the logjam in the foreclosure crisis."

The settlement with the nation's fourth-largest mortgage servicer is the result of a massive civil law enforcement investigation and initiative that includes state attorneys general, state mortgage regulators and the CFPB. The settlement terms address servicing misconduct by Ocwen and two companies later acquired by Ocwen, Homeward Residential Inc. and Litton Home Servicing LP. Ocwen specializes in servicing high-risk mortgage loans.

According to a complaint filed in the U.S. District Court for the District of Columbia, the misconduct resulted in premature and unauthorized foreclosures, violations of homeowners' rights and protections, and the use of false and deceptive documents and affidavits, including robosigning.

The investigation also found Ocwen and its related companies engaged in improper servicing practices, including but not limited to: failing to apply payments made by borrowers accurately and in a timely manner; failing to maintain accurate account statements; charging consumers unauthorized fees for default-related services; and failing to provide accurate and timely information to borrowers seeking information about loss mitigation services.

The settlement brings additional hope for Winston and Norma Rose, a retired couple who have owned a home in East New York, Brooklyn, since 1959. Mr. Rose retired from his teaching job in the public school system in 1993. In 2007, he refinanced their two-family home in order to pay for necessary repairs. When their tenant started having trouble paying rent, the Roses reached out to their lender to seek a loan modification.  They have been desperately trying to negotiate with the mortgage servicers ever since. This year, Ocwen took over the servicing of their loan, but the Roses are still struggling to get relief.

Mrs. Rose, 75, said, "For five years now, we have lived in fear of losing the only home we've ever known. The anxiety and frustration had taken a toll on us. We are hopeful that Ocwen Loan Servicing will be able to put an end to this nightmare."

Josh Zinner, co-director of the New Economy Project, said, "We thank the Attorney General for his ongoing efforts to hold banks and mortgage servicers accountable to communities. Abusive servicing practices have caused great harm to New York homeowners and communities for many years.  We hope the focus on first lien principal reduction in this settlement means that most of the relief will go toward keeping people in their homes with affordable modifications."

The Ocwen settlement does not grant immunity from criminal offenses and would not affect criminal prosecutions. The agreement does not prevent  homeowners or investors from pursuing individual, institutional or class-action civil cases. The agreement also preserves the authority of state attorneys general and federal agencies to investigate and pursue other aspects of the mortgage crisis, including securities cases.

A copy of today's consent order and the complaint can be read here
and here
 

Hamilton Heights Penthouse to be Auctioned - 458 W 146 St Manhattan

December 16, 2013
458-west-146th
The website Curbed reports of an opportunity to purchase a two-bedroom penthouse condominium in a bankrupt Hamilton Heights building need only $80,000 to be eligible to bid at an upcoming auction. 

Plainview, N.Y. based clearinghouse David R. Maltz & Co. plans to auction off the unit at 458 West 146th Street located between Convent Avenue and Amsterdam Avenue in February 2014. The 1,700-square-foot apartment has a 1,600-square-foot private rooftop terrace.

The unit last changed hands in 2007, for $1.2 million, not long after the eight-story unit building was converted from an early 20th-century carriage house, in 2006, according to Curbed. In 2011, a lien was filed against the home for $1.08 million.

Interested buyers need to have just $80,000 to be eligible to bid. According to the listing, the "property will be sold free & clear of all liens, claims and encumbrances"— Property Shark shows a lien was filed against the property in July 2011 for $1.08 million—and "all prospective bidders must present a bank check in the amount of $80,000 made payable to 'Gregory Messer, Esq., as Chapter 7 Trustee.'" A five percent "buyer's premium" will be added to the successful bidder's price to determine what will actually be paid, and the buyer's broker will also receive a 1 percent commission.

The eight-unit building is a conversion located in a carriage house that's more than 110 years old.
The above photo is copyrighted to The Real Deal.
 

Tax Amnesty Anyone? Webinar Today!

December 11, 2013
Esteemed tax attorney Lewis Taishoff reports today that the IRS has increased the user fees for installment agreements and OICs.

Effective 1/1/14, an installment agreement will cost $120 (up from $105) and $50 (up from $45) to reinstate or restructure an existing agreement. The fees for a direct debit agreement ($52) and for low-income taxpayers ($43) won't change. An OIC will set you back $186 (up from $150). Still, low-income taxpayers and taxpayers making an offer based solely (and that means solely) on doubt as to liability get a free ride.

And it just so happens IRS is running a collection alternatives webinar today, 12/11/13.   For further information register at http://www.visualwebcaster.com/event.asp?id=96566
 

Celebrating Christmas

December 10, 2013
Well, I can't help but reflect upon Ben Stein's Christmas message from 2011 as we near the Christmas holiday.  I'm sharing it here with you in case you may have missed it.
http://www.cbsnews.com/news/a-ben-stein-christmas/

Every year when Christmas comes along, people celebrate with Christmas lights and shopping sprees cookies and carols. But that doesn't always get to the heart of this very special holiday. Ben Stein -- actor, writer, economist, and occasional philosopher, has a unique perspective on Christmas, which he shared with "Early Show" viewers Friday. In a nutshell, Ben says Christmas is for everyone, regardless of religion, and that this season, we should honor the spirit of forgiveness and love:

My wife and I celebrate Christmas, big-time. I am sure we have more decorations than anyone within miles of here has.

Why?

On a superficial level, it's because the lights and tree and fire are festive. That's innate. Man loves colored lights and fires. When I was a child in Maryland, the Gentiles had festive lights and we Jews didn't. I didn't like that. I saw no reason why the Gentiles should have all the fun and I still don't. Having those lights and a tree -- that's what I always wanted -- to have colored lights and to be a part of the dominant culture.

But I love Christmas for much more basic reasons. Christmas is about something huge. You can be saved if you simply make a contract to believe in God and (some add) if you act right. It has nothing to do with how you were born or into what tribe.

This is a revolutionary, stupendous freeing of the human spirit. This is why Christmas is such a joyous time for people, whether Jews or Christians, or anyone else, who want to believe that we humans can be forgiven and go on to lead lives of triumph no matter what has happened in our past.

That, and not shopping at all, not the retail numbers, is why Christmas is such a great time.

The lights are nice and the tree is nice and the shopping is nice. But a dominant culture that says that love and peace are the highest values -- that's what I want to honor.

We don't honor retail sales numbers. We honor the spirit of forgiveness and love. That's Christmas for me.

Merry Christmas.

© 2011 CBS Interactive Inc. All Rights Reserved.
 

COMMON HOLIDAY INTERNET SCAMS

November 21, 2013
COMMON HOLIDAY SCAMS - tis the season my friends - here are some scams to watch out for:
  • Free $1,000 Best Buy Gift Card Text Message (you enter a code on BestBuyContest.com and BestBuyWin.net) - this year may also been seen as Target or Walmart;
  • Fake Leaked Black Friday Ads for Popular Retailers such as Walmart, Target, Best Buy - downloadable coupons which are actually phishing schemes;
  • False Videos and eCards (carry Viruses) spambot on Twitter or other social media; "blackhat SEO" fake sites that show up on Google searches - JavaScript detects Internet Explorer users and prompts to install "Internet Security Suite" for fake anti-virus notifications that download a virus.
Hopefully these will not be a problem for you and you can enjoy our holiday season scam free!
 

Capitol Records v. Vimeo - Video Sharing Website Wins an Important First Hurdle

September 30, 2013
About an important decision, the New York Law Journal reported last week that a Southern District judge in large part accepted the arguments of Vimeo, a video-sharing website, and its lawyers at Quinn Emanuel Urquhart & Sullivan on Wednesday in Vimeo's copyright spat with a group of EMI Music record labels.

The litigation, similar in many ways to Viacom's much-larger copyright battle with YouTube, concerns close to 200 copyrighted recordings that Vimeo users included in video uploads to the site. The record labels sued in 2009, claiming that Barry Diller-backed Vimeo should be held liable for widespread infringement. 

However, Judge Ronnie Abrams stated that safe harbor provisions of the Digital Millennium Copyright Act shield Vimeo from the record labels' copyright claims for most of the videos in question.

Still, Abrams, in Capitol Records v. Vimeo, 09 Civ. 10101, found that triable issues remain for 55 recordings named in the complaint, including everything from "All You Need Is Love" by The Beatles to "Peaches" from The Presidents of the United States of America. The judge also granted the recording companies' motion for summary judgment on any videos containing music copyrighted before Feb. 15, 1972, ruling that the DMCA doesn't apply to the earlier recordings.
 

Short Sales - Have You Checked Your Credit Report Recently?

September 4, 2013
In an article published on-line today written by Krista Franks Brock, titled, “Fannie Mae to Fix Glitch that Harms Some Consumers' Credit”, Ms. Brock reported that because of a shortcoming in Fannie Mae’s software, many homeowners who sold their homes through short sales have suffered undue harm to their credit and additional penalties preventing them from attaining new mortgage loans for several years, according to Sen. Bill Nelson (D-Florida), who has been working toward a solution to the problem.

Because Fannie Mae’s software reportedly does not offer a “short sale” label, it therefore labeled short sales as foreclosures in the GSE’s system.

While short sales may have some effect on credit, foreclosures are more harmful.  Furthermore, after a foreclosure, an individual cannot obtain another mortgage loan for seven years in most cases.

After a short sale, an individual has to wait only two years before applying for a mortgage loan.

Florida has suffered some of the highest foreclosure and underwater rates in the nation during the housing crisis, and Sen. Nelson has taken interest in the misrepresentation that has harmed many of his constituents.
Nelson has been working with the Consumer Financial Protection Bureau and Sen. Claire McCaskill (D-Missouri) to find a solution.

According to Nelson’s office, Fannie Mae will revise its software and correct the problem by November 16.

“Regardless of the cause, I’m glad Fannie Mae is fixing the problem,” Nelson said. “You can’t punish homeowners who went upside down solely because of the economic downturn and loss of value in their home.”

Consumers whose short sales have been mislabeled as foreclosures can visit the CFPB website and submit a complaint.
The CFPB also encourages them to obtain a letter from their former lender explaining that their home was not foreclosed but rather sold through a short sale. The individual can then present this letter to lenders when applying for home loans or other credit in the future.

 

So you were driving along and hit a cow.....

May 6, 2013

Hastings v. Sauve

Docket: 78Opinion Date: May 2, 2013
Judge: Smith
Areas of Law: Animal / Dog Law, Injury Law

Plaintiff was injured when the van she was driving hit a cow on a public road. Plaintiff brought a personal injury action against the owner of the property where the cow was kept and the two men who may have owned the cow. Supreme Court granted summary judgment for two of the defendants. The Appellate Division affirmed as to those defendants and also granted summary judgment as to the third defendant, concluding that, pursuant to Bard v. Jahnke, injuries inflicted by domestic animals "may only proceed under strict liability based on the owner's knowledge of the animal's vicious propensities, not on theories of common-law negligence." The Court of Appeals reversed, holding that the rule of Bard does not bar a suit for negligence when a farm animal has been allowed to stray from the property where it is kept.

 

About Me


Michele A. Peters General Practice Law Emphasis in the areas of Real Estate; Estate Planning; and Business Law. ATTORNEY ADVERTISING Manhattan Office: Chanin Building - 380 Lexington Avenue, 17th Fl, NY, NY 10168 (212) 461-4240 or (201) 225-8233 Northern New Jersey Office: Prospect Plaza - 535 High Mountain Road, Ste 210, North Haledon, NJ 07508