Times-Herald Record Readers’ Choice Awards

The results are in and I was nominated into the “TOP 5” in the category “Best Real Estate Attorney” in this year’s Readers’ Choice Awards! The next round of voting closes on June 23, so please vote for me!

Readers' Choice

Go to recordonline.com/choice and vote!

 

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Probing the Limits of Abuse and Endangerment

Last fall, I had the pleasure of attending a very interesting seminar organized by the NYS Defenders Association in Poughkeepsie, NY. In perhaps the most memorable case, Emma Ketteringham, Managing Attorney of the Family Defense Practice of the Bronx Defenders, outlined the complexities of child custody cases involving an expectant mother who used drugs, and I would like to bring the details of one such case to your attention.

Much of Ketteringham’s discussion centered on a 2013 New Jersey Supreme Court (N.J.S.C.) decision written by Chief Justice Stuart Rabner (N.J. Div. of Youth and Family Servs. v. A.L. (A-28-11)(068542)). This particular case dealt with the extent of an expectant mother’s “abuse” or “neglect” of her child if she uses drugs during pregnancy but otherwise causes no actual harm when the baby is born.

In this case, the respondent mother tested positive for marijuana in her fifth month of pregnancy and upon admission to the hospital, tested positive for cocaine.  Although the infant’s urine was negative for cocaine two hours after birth, his meconium later that day revealed the presence of cocaine metabolites. The New Jersey Division for Child Protection and Permanency (N.J.D.C.P.P.) determined that the allegation of neglect was substantiated and filed a complaint for abuse and neglect against the mother. Although documents were submitted into evidence, no testimony apparently took place. Both the lower court and the Appellate Division declared that abuse and neglect had occurred, creating a serious risk of harm to the child.

The N.J.S.C. however unanimously held that the petitioner agency’s case did not show actual harm or imminent danger or a substantial risk of harm to the child after birth, as state law requires. Additionally, the court found that the law (N.J.S.A. Title 9) applied to a child and not a fetus. Since there was no evidence of physical or mental abnormalities, the infant was not in any actual harm by the mother’s actions. Furthermore, the evidence presented in court as to the mother’s drug use did not establish a degree of future harm posed to the child.

This case raises some interesting questions. Perhaps if the petitioner had presented proof that the child was suffering from withdrawal or other abnormalities it could have shown actual harm to the newborn. In my opinion, a finding was warranted with an Order of Supervision including a requirement of a drug evaluation and follow through with any recommendations.

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Moving Day

Moving is never easy.  There are so many details to keep track of, such as all the tasks involved with closing down the old office and coordinating visits with the utilities and technicians at the new location.  It can be stressful, especially since I’m still in business and meeting with clients all through the transition.  But my new office is great!  It is near my old office, but much larger, giving me space to grow the firm.  It also has ample parking, and easy access to the main road.  I think it will be much more convenient for my clients.  I am eager to settle in and move forward here!

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Upcoming Seminars

I have a busy calendar of seminars I plan to attend over the next several weeks. On Monday, October 24, I attended a workshop on foreclosure defense covering emerging issues, service regulations and issues surrounding the federal Home Affordable Mortgage Program (HAMP). From my own experience, it seems that there is still a huge amount of confusion from the banks regarding the provisions of HAMP. Even though this seminar is up in Albany, I think it is worth it to hear the latest on these contentious issues, and perhaps learn something that I can use to help people in my practice.

I am also going to a workshop on Chapter 7 and Chapter 13 bankruptcy filings in early November with some of the biggest names in the field of creditor and debtor law in our area. It looks to be a good program going over recent developments in that field as well.

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Real Estate is picking up…

After a long slump, it looks like the local housing market is starting to show signs of life.  I don’t want to say we are out of the woods at this point, of course, but it is a positive sign to see home sales start to pick up.  Lenders certainly haven’t relaxed too much, as I see they are still picking things apart, asking for more and more documentation as part of the loan approval process.  Long story short, make sure you have all your documents in perfect order if you are looking to buy a house today, because chances are the lender is going to be asking for everything.

On other real estate fronts, I have been working on mortgage modifications for people behind on their mortgage.  I recently had a client who hired me to do a modification, and things seemed to be going smoothly with the lender.  We supplied all requested paperwork and all our ducks seemed to be in a row.  The process was abruptly ended by the lender, however, when the lender issued my client a summons and complaint in foreclosure.  I have now entered a counterclaim against the lender for bad faith, but it is apparent that things like this have been happening with frequency.  My question is whether HAMP (Home Affordable Modification Program), which was set up to avoid this type of situation, is really effective at all?

I also just wrapped up a short sale closing that took one year and three months to complete and featured a series of three or four buyers that didn’t work out.  My clients and I persevered however.  We got the sale without a foreclosure proceeding being initiated, even though my clients had not paid their mortgage for a long time.

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Recent Conferences

I just attended a conference on elder law.  There was a great deal of material to absorb at this conference, and left me thinking about the complexity of elder law and the options open to individuals in the later stages of life.  More and more people want to stay in their own home as long as possible rather than rushing into assisted living facilities or nursing homes, and there are more options available today than ever before to help realize that goal.  I am still digesting the material covered at this conference, so I will update again soon.

A few weeks earlier, I also attended a conference on what civil court judges want you to know when you appear before them in their courtrooms.  Much of the material focused on settlement conferences in the context of jury trials, and while this does not specifically relate to my own practice, I found the conference to be insightful nonetheless.  What I took away from this was a real opportunity to get inside judges’ heads, to hear their perspective on their positions and responsibilities, to try and find out what makes the judges tick, and to understand where they are coming from.  This kind of information is helpful to any lawyer.

 

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Foreclosure Proceeding

Recently I submitted a Motion to Dismiss a foreclosure proceeding in Supreme Court of New York. It was based upon the improper assignment of a note and mortgage from the original lender to a third party. Since the corrected assignment of mortgage was not recorded until after the case was commenced, the plaintiff did not have the required standing to start the action.

While the area of foreclosure defense is expanding, the lenders are tightening up their practices to avoid these loopholes.The role of the foreclosure defense attorney is to look for a smidgen of a defense to give a client more time to either sell the house or regroup his or her financial situation.

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New admittance to Federal Court

 I was recently admitted to practice law in the United States District Court for the Western District. This is to enhance my practice in commercial law(collection and bankruptcy law).

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A recent seminar in NYC

 

I recently attended a seminar in NYC entitled ”Hot topics for solo practice attorneys.” While the journey down there was difficult (3 hours on a bus during a snowstorm) the trip was worth it. Hot topics keep solo practitioners on the cutting edge of the law. This included updates on foreclosure law, elder law and the new “Family Health Care Decision Act.”

This state law which was signed into law on March 16,2010 applies to health care decisions to an incapable patient who does not have a health care agent nor a living will. This law provides a mechanism to establish authorization for a patient’s family or close friend to then make those decisions.

Basically the hospital or facility must now a process to determine if a patient lacks capacity for this purpose and if so the order of priority as to the persons who may act as a surrogate decision maker. Has anyone been involved with this new law? I would like to hear from you. For example, what would occur if a brother or sister, who may have priority is not as capable as a close friend would be to the patient? Thanks for your input.

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real estate closings

The real estate is very slow this time of year. Hopefully in the Springtime the market will improve! I welcome any input or comments from other real estate persons.

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