Monthly Archives: March 2015

New York foreclosure cases nearing 6 year statute of limitations

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As reported today in the New York Times, there are increasing numbers of foreclosure cases in New York State where lenders may be unable to seize homes.  Why?  Because the State’s statute of limitations on foreclosure cases may be exceeded.

If you have a foreclosure case that has been dragging on for nearly six years, there may be relief on the horizon.

Does this sound similar to your situation?  If so, and if you require legal representation, call my office for more information.

Visit the New York Times for the full article.

by Richard A. Klass, Esq.

copyr. 2015 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Essential Components of a Last Will and Testament

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A Last Will and Testament sets forth the wishes and directions of the “Testator” upon his/her death. It is important that, in considering the various issues of one’s Will, the following items be incorporated:

  1. Executor
    The first consideration of the person making the Will is who will be selected to carry out his/her wishes upon death. The person selected should be a responsible, trusted friend or relative. The person selected should not be someone who has been convicted of a felony, and preferably an American citizen who is over 18 years old. The Testator should approach the proposed Executor to make sure that he/she would be willing to serve as the same. Alternate Executors should be selected as well, in the event that the selected person does not serve. If the Testator wishes to restrict certain rights of the Executor (e.g. mortgage property or make a loan from the estate), the same should be stated in the Will.

  2. Guardians of children
    If the Testator has minor children, a serious discussion should be had with the friend or relative to be selected as guardian of the children in the event that neither parent survives. Alternate guardians should be selected as well, in the event that the selected person does not serve.

  3. Beneficiaries
    The people or entities to whom property will be left by the Testator are called the beneficiaries. The Testator may designate the property to be received by the beneficiaries in terms of specific dollar amounts, percentages of the estate, specific items, or rights to be given.

It is important in estate planning to be cognizant of the fact that certain assets will pass “outside of the estate,” and not be controlled by the dispositions in the Will, but rather by their own terms. Examples of such assets are life insurance policies, annuities, Individual Retirement Accounts, and other types where beneficiaries are designated therein.

R. A. Klass
Your Court Street Lawyer

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A Man’s Home is his Castle (and Notice of Pendency, an overview)

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One of the most important ownership rights in this country is the ownership of one’s house. The old phrase “A Man’s Home is his Castle,” was born from the basic concept that ownership of real estate is the hallmark of freedom.

Contrast the above concept with the other, important concept: we all live in this world together. In living together, we necessarily engage in conduct that requires us to act and react to events external from our personal dominions.

These two concepts intersect at various times, but one place where they come into direct contact is when the law touches upon a person’s home. This may come about when one sells or buys a house; gets injured on someone’s property; obtains or gives a mortgage on the house; leases part or all of a building; or invests in commercial or residential property.

Various issues may develop into litigation concerning real estate matters, including:

  • Contracts: Litigation around contracts to buy or sell real estate can arise.
  • “Pushy neighbors”: Disputes over property lines, construction or zoning.
  • Auctions: Transactions and litigation surrounding the purchase of residential or commercial property, condominium units, or cooperative apartments at foreclosure auctions.
  • Fraud: Mortgage fraud, Deed theft, or breaches of confidential relationships.
  • Specific performance: Forcing the seller to close title even though he doesn’t want to.
  • Partition and Sale: When co-owners of the real estate no longer agree about ownership or management of the property, they can seek a sort-of “divorce” by bringing a partition-and-sale action to have the court order the property sold and the net proceeds divided.

Notice of Pendency, an overview

When litigation surrounding real estate is involved, there is generally a need or desire to file a “Notice of Pendency” (or commonly known as a “Lis Pendens”). This is a notice to any potential purchasers or mortgagees that there is litigation involving the property which may affect its “title, use or enjoyment.” This provides protection that the owner of the real property will not sell, transfer, mortgage, or dispose of it, thus leaving the suing party high and dry, before the litigation is over.

Anyone who decides to buy or give a loan with the property as collateral will think twice, knowing that someone out there is making a claim against the property. This can be a very powerful tool, given that owners of property usually have an inalienable right to sell their property as they choose.

by Richard A. Klass, Esq.

R. A. Klass
Your Court Street Lawyer

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Debt Collection Tips: Restraining an Account

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Once the creditor has obtained a Judgment from a court, one of the options for obtaining payment of the Judgment is to restrain funds of the debtor contained in an account.

The process is to serve a “restraining notice” upon the subject bank, as permitted by statute.  In turn, the bank then holds the funds contained in accounts belonging to the judgment debtor pending further action on the part of the creditor.  This restraint remains in effect upon the funds for a period of one year.

The next step of the creditor is to remove the restrained funds from the bank.  This is done either through an Execution issued to a Sheriff or Marshal (since that person is deemed as “enforcement officer” able to obtain the funds), or through a “turn-over proceeding,” where the creditor begins a separate action against the debtor and the bank as a garnishee requesting that the court direct the garnishee/bank to turn over the restrained funds.

Once the restrained funds are delivered to the creditor through either of the above methods, the accounts of the debtor will continue to be restrained by the bank (where, in the event that new funds were deposited, they would be restrained as well) until the creditor issues a “release” letter to the bank or a Satisfaction of Judgment is filed by the creditor.

Where an account of the debtor is held jointly with another person, it is necessary to file a turn-over proceeding, as the court must determine the respective rights of the account-holders to the funds.  One defense to the proceeding is that the debtor is a joint account-holder only for convenience purposes.

copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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