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Articles by Peter T. Roach

Located in Syosset, NY, Peter T. Roach & Associates, P.C. has the most experienced professionals in real estate, litigation, foreclosure, and bankruptcy law. Our vast knowledge and experience allow us to effectively take on any case. We do everything we can to better serve our clients and exceed their expectations! To learn more about our practice, please read some interesting articles about New York debt collection and real estate law.

Thursday
Oct162014

Closing In: The Real Estate Closing Date

One of the most important terms of a real estate contract is the “closing date.” This is the date that the purchaser remits the balance of funds due and the seller delivers the deed and gives possession of the property to the purchaser.

Since lawyers rarely, if ever, will agree to a “Time is of the Essence” contract, either party is entitled to a “reasonable adjournment” of thirty (30) days from the date of the closing date.  All too often, however, closings are delayed and adjourned well beyond that, sometimes with impunity.

These delays create an inconvenience for purchasers who may have already vacated their current residence in anticipation of closing on or around the date provided in the contract, and must find alternative living quarters and, perhaps, incur storage costs for their furniture and personal property. It can also burden sellers, who may have already vacated the property being sold, with carrying the cost of maintaining both their former and current residence and paying both mortgages.

Once thirty (30) days from the closing date have elapsed, the seller may declare a “Law Date” and give the purchaser “reasonable notice” that on a specified date and time at a specified place (usually his/her lawyer’s office) the deed will be executed and ready for delivery.

Should the purchaser fail to appear on the “Law Date” at the scheduled time and place, the contract will be cancelled, the contract deposit forfeited and the litigation will begin!

Should the seller be the one causing delay, the purchaser may commence an action for specific performance where he/she seeks a court order directing the seller to close, and the litigation has begun!

Either way, litigation is usually far too expensive for most parties to a residential real estate contract, so as a practical matter, where one party delays, the other party …. waits … and waits… and waits.    

An alternative to the dreaded “Time is of the Essence” clause is to include a “Penalty Clause” in the contract which states that if the closing is delayed beyond a certain date, the party causing the delay will incur a specified penalty for each day delayed. While enforcement of such a penalty clause will be difficult, the cost of litigation generally precludes it as a practical matter, its mere existence will act as a deterrent and cause both parties to close before incurring the penalty.

As with any other term in the contract, a penalty clause must be agreed to by both sides.  As it is not “standard,” you may encounter some resistance to your request to insert such a clause into the contract and will have to decide whether to insist upon it and risk the transaction or withdraw your request and risk a delay.

To avoid any “unintentional delays,” it’s important for the real estate attorneys to do their homework and make sure that all issues have been addressed and resolved prior to the closing, but even with the parties’ best intentions, and thorough competent real estate attorneys, one must always be prepared for delays regardless of the anticipated closing date.

Peter Roach
Peter T. Roach & Associates, P.C.

 

 

 

Monday
Sep292014

A rose...is a rose...is a rose, but lawyers are not roses!

Hiring the right lawyer may be one of the most important decisions you will ever make.  If you have not dealt with different attorneys regarding different matters, you may be under the impression that all lawyers are the same, but nothing could be further from the truth.

While all lawyers must pass a bar exam and maintain required standards, thinking they are all the same is like thinking there is no difference between Derek Jeter and the newest rookie. While they are both professional baseball players, there is clearly a big difference between the two! Similarly different lawyers will have different levels of experience in each area of practice.

There are many ways to research a lawyer’s qualifications and experience.  For example, all attorneys are now required to take continuing legal education courses to maintain an up-to-date knowledge of what is current in the law.  Some lawyers will listen to a lecture during their daily commute, while other lawyers will attend seminars in person where the experts in the field teach the current state of the law.

Q: Which one of these lawyers do you want to hire?

 A: Neither! You want to hire the lawyer giving the lecture!

In today’s world of Google, LinkedIn and other social media, a simple search should enable you to identify the experts.

Additionally, there are several well-respected organizations that can provide you with reviews and rankings of lawyers, as well as specific background information to help you decide which lawyer to hire.

Super Lawyers

Visit the website here.

Super Lawyers is an independent rating service for outstanding lawyers, those who are considered the top 5% of their area of practice. The Super Lawyer selection process is as follows:

1.       Peers select the best lawyers in their fields

2.       Third-party validation

3.       Review by experts

4.      Top 5% are selected  

AVVO Rating

Visit the website here.

AVVO matches the attorney's background via an unbiased mathematical model to determine each lawyer’s numerical rating. Factors taken into consideration include:

  • Experience level

  • Reputation

  • Professional awards and achievements

  • Lectures and Publications

  • Attorney’s disciplinary history

Martindale-Hubell

Visit the website here.

Martindale-Hubell is another peer review rating service for lawyers. Their methodology recently changed to examine two factors in their determination:

1. Legal Ability: Legal knowledge, analytical capabilities, judgment, communication ability and legal experience.

2. General Ethical Standards: Adherence to professional standards of conduct and ethics.

Lawyers that meet both of those standards, are awarded an “AV” rating from Martindale-Hubell.

When selecting attorneys, it is important to consider their experience level, reputation and the attention they will devote to your particular matter in addition to the fee they charge.  Failure to do so may be far more costly in the long run, so don’t skimp on the research you do!


Peter Roach
Peter T. Roach & Associates, P.C.

 

 

Friday
Sep122014

New York’s Statute of Limitations - Another Pitfall to Avoid!

New York’s Statute of Limitations ("SOL") is designed to protect homeowners from the unfairness that might otherwise result from foreclosures concerning defaults that occurred so long ago that the homeowner may no longer possess documents, evidence or proof of payments made.

CPLR 213 provides that actions to enforce contracts (such as Notes and Mortgages) must be commenced within six (6) years, or the defendant may raise the affirmative defense that the SOL has expired and the case will be forever dismissed.

There are, however, exceptions to this rule, such as the following:

  • Each payment required is considered a separate cause of action, so unless the entire balance has been accelerated, only those payments that were due more than six years ago are barred.
  • Each time the borrower submits a payment, the six (6) years begin to run anew.
  • If the borrower files a bankruptcy petition, the SOL is tolled during the time bankruptcy is pending. 

  • If the borrower signs a written document (including Forbearance Agreements, Loan Mods, or even correspondence) acknowledging the debt, the six (6) years will begin to run anew from the date of this acknowledgment.

Furthermore, pursuant to CPLR 205(A), if an action is dismissed for any reason, other than the four (4) exceptions listed below, a party may commence a new action within six (6) months of the dismissal even though the SOL may have expired. The exceptions are dismissals based upon:

  1. Lack of jurisdiction

  2. The merits of the case

  3. Voluntary dismissal

  4. Failure to prosecute

Therefore, it is crucial to avoid voluntarily discontinuing a foreclosure if a SOL issue exists! If you discover a procedural defect in a foreclosure action, but the SOL has expired while it was pending, DO NOT discontinue the defective foreclosure voluntarily, but wait for the Court to do so to ensure that a new foreclosure can be commenced in the next six (6) months. (And don’t forget that you may need to send a new 90 Day Notice, per RPAPL 1304)

As a result of the “extended timeline” in New York, SOL issues are becoming more and more “routine.” Be careful not to handle them routinely, however, or you may discover a whole new meaning for SOL!


Peter Roach
Peter T. Roach & Associates, P.C.

 

 

Tuesday
Aug192014

Judgment Enforcement: What’s in your debtor’s wallet?

Many litigation attorneys are very good at what they do - winning cases and obtaining judgments. But once they obtain a judgment, their clients are not always voluntarily paid what they have been awarded, and the judgment must be enforced. In order to do so, the debtor’s assets must first be located so enforcement proceedings can commence.

As collection attorneys, we are often retained after judgments have already been obtained, since the attorney for the judgment creditor usually does not possess the expertise or the necessary resources to locate debtor’s assets. Since we typically charge contingency fees, ranging from 13.5% - 25% of the amounts actually recovered, there are no fees to be paid unless we collect funds due!

Our skip tracers utilize our “waterfall resources” and custom proprietary software to locate bank accounts and identify employment of debtors, while our collectors try to negotiate settlements during the enforcement process.

Our “waterfall resources” include numerous databases that our skip tracers use to locate bank accounts and places of employment for individual debtors or guarantors. Debtor’s employment can be identified by searching through websites of local, state and federal government and utilizing numerous asset search vendors for privately employed debtors. Once a debtor’s place of employment is identified, we issue a Wage Garnishment to a Marshal or Sheriff.

Our custom proprietary software enables us to compare our debtor’s information with the information contained in the databases of the major banks. Once a “match” is identified, we issue a Restraining Notice to “freeze” it so that the debtor may no longer make withdrawals from that account. This often results in a telephone call from the debtor asking us to release the account and offering to pay most or all of the judgment in exchange for this release. Additionally, we also send “paper restraining notices” to smaller banks.

Finally, although we are only allowed to send “information subpoenas” to those banks which we have reason to believe has information regarding our debtor, when a bank acknowledges that they do, in fact, have an active account, we serve them with an information subpoena to obtain further information about the debtor's place of employment and other assets he or she possess.

While the enforcement of a judgement can easily be done by any lawyer if he or she knows exactly where the debtor's assets are located, the difficult task is to find this information. The investment to be able to do so, both in time and money, however, is quite substantial, which is why collection lawyers are able to to locate assets that other lawyers cannot.


Peter Roach
Peter T. Roach & Associates, P.C.

 

 

Monday
Aug042014

Strict Foreclosure: The Second Bite of The Apple

When a mortgage is foreclosed, not only are the rights of the owners of the property extinguished, but all rights of third parties who have subordinate liens or other interests are extinguished, as well as the property, which will be sold at the foreclosure sale “free and clear” of any such interests.

In order for the Plaintiff's attorney to comply with the constitutional requirements of Due Process, these parties must be given “notice and an opportunity to be heard,” which is accomplished by naming them as defendants and serving them with a summons and complaint.

Sometimes the title company fails to discover a subordinate lien or interest and the foreclosure search does not include it. As a result, the party holding the subordinate lien or interest is not named as a defendant, and their lien or interest is not extinguished. Consequently, upon completion of the foreclosure the bidder’s title company (or third party purchaser’s title company if the Lender was the successful bidder and then sold the REO) will raise the lien or other interest as an exception.

In order to omit this exception, a “Strict Foreclosure” will be required, not against “the world”, but strictly against the one or more defendants who weren’t named in the original proceeding. To afford these parties “Due Process”, they must be:

  1. Named as Defendants in the Strict Foreclosure;
  2. Served with a summons and complaint;
  3. Given the opportunity to defend against and raise any defenses they would have been able to raise in the initial foreclosure; and
  4. Given the opportunity to exercise their right of redemption, which is the right to pay the mortgage debt in full, thus satisfying the mortgage and avoiding the loss of their lien or interest.

Rarely, if ever, is there any response from any of the parties served with a summons and complaint for a Strict Foreclosure, as these parties are not usually willing to to pay the entire mortgage balance in order to preserve their rights. Accordingly, upon the expiration of their time to answer or redeem, an Order may be submitted to the Court that extinguishes their rights, just as if they had been named and served the initial foreclosure.

The delay (six months to a year) caused by the need for this procedure, however, will be quite upsetting to the client, who is already frustrated at the length of time required to liquidate their non-performing mortgage. If the foreclosure attorney has a good relationship with the title company that is insuring the purchaser, and if the amount of the judgment of foreclosure is greater than the amount of the purchase price for the new property, the title company will often accept an “Undertaking” from Plaintiff’s lawyer to complete the strict foreclosure and extinguish the lien. Based upon the Undertaking, they will omit the lien as an exception to title, allow the closing to proceed and enable the client to receive their sales proceeds without further delay.

Sometimes it’s BOTH what you know and who you know!

 

Peter Roach
Peter T. Roach & Associates, P.C.