Recovery of Surplus Funds in New York – An Update
Longtime readers of this blog will remember several prior posts relating to the recovery of surplus funds in tax lien foreclosures. The United States Supreme Court ruled in Tyler v. Hennepin County, Minnesota whether the government could keep surplus funds in tax lien foreclosures. The ultimate ruling was that it was an unconstitutional taking of property for a municipality to retain excess funds in a tax lien foreclosure.
To summarize, if a property is sold at a tax auction in order to satisfy a lien for unpaid property taxes, and the amount for which the property is sold exceeds the amount of past due taxes, the (former) property owner is now legally entitled to the surplus funds raised by the auction. Prior to the Supreme Court’s decision, certain states (including New York) would simply keep any excess funds collected in the auction, and the former owner would have no claims to these funds under the applicable state laws, which have now been held to be unconstitutional.
What does this mean on a practical basis? Although it is beyond the scope of this blog to discuss how other states are handling the situation, counties in New York State have been preparing databases showing the surplus funds, if any, raised in tax lien sales. These lists show the amount of the tax lien, the date of the tax auction, the sum for which the property was sold at the auction, and the surplus funds being held by the county. Under the Supreme Court decision in Tyler, the former owner now has a right to claim these funds in New York.
Who was the First to “Bite the Bullet?”: Simultaneous Death and Gene Hackman
Many of our readers may have been shocked to hear of the recent passing of acclaimed actor Gene Hackman. Not because he was 95 at the time of his death, but due to the circumstances of “Jimmy ‘Popeye’ Doyle’s” death and the status of his family relationships. The two-time Academy Award winner was married for more than thirty years to his second wife, Betsy. A property caretaker found both of them deceased in their home for up to several weeks. Although Betsy was younger than “Little Bill Daggett” by several decades, autopsies conducted on both bodies indicated that Gene survived Betsy by approximately one week. Sadly enough, another conclusion was that Mr. Hackman suffered with Alzheimer’s disease, may not have known that his wife was deceased, and seemingly did not know how to obtain assistance. Notably, Mr. Hackman’s children (all from his first marriage) did not seem to be in contemporaneous contact with him so as to have avoided his passing away alone.
It should be noted that Mr. Hackman’s primary residence was in New Mexico. This discussion will address how such a situation would be handled in New York. When both spouses pass away within a short timeframe of one another, the issue of simultaneous deaths should be considered. In New York, clear and convincing evidence is required that the second to pass away survived the first by one hundred twenty hours (five days) in order for a disposition to the survivor to be effective. Otherwise, the second to die is deemed to have predeceased the first to die and the following person named as a beneficiary will receive the property at issue. Certainly, the results of an autopsy would meet the higher evidentiary standard. An important exception to this statute is if a legal document such as a Will or Trust specifies a different timeframe than one hundred twenty hours. For instance, “Lex Luthor’s” Will required survival by ninety days.
Betsy left her estate to Mr. Hackman and then to charity if he did not survive her. There now seems to be a discrepancy in the date of Betsy’s passing (rumors suggest that she passed away at least one day later) such that there was less time in between their deaths than initially reported. Assuming that Betsy also had a ninety day survival provision in her Will and Mr. Hackman did not meet that threshold, her estate may have been left to charity, not to Mr. Hackman; who would be deemed to have predeceased in this situation, so that Hackman’s children would not stand to inherit (indirectly) from Betsy.
Foreclosure Defense – Playing the Numbers Game
When our firm is retained by a new client whose property is in danger of being foreclosed, one of the first issues that needs to be determined relates to the equity in the property. Equity can be defined as the net value of the property, once all liabilities are calculated. It is an important component of deciding the correct game plan for defending any potential foreclosure action.
The first step towards calculating the equity in a property is to obtain an estimate of the current market value of the property. Although there are online service such as Zillow which may give an estimate of a home’s current value, these “zestimates” are approximate and may not reflect the current physical condition of the property. In order to obtain the most accurate value, we recommend hiring a professional appraiser. The appraiser is an independent licensed professional who will thoroughly examine both the interior and exterior of the house, and also compare it to other similar properties on the market in the area where the property is located. Once they have completed their inspection, they will provide a written report which gives a current market value for the specific property.
The second step is determining the current debt on the property. Payoff letters can be requested from the current mortgage holder. Keep in mind that there may be more than one mortgage on the property, requiring obtaining multiple payoff letters. The payoff letter will show the amount needed to pay off the outstanding mortgage. Depending upon how advanced the mortgage foreclosure process has proceeded, there may be additional charges added by the lender, such as property taxes advanced by the lender, as well as costs and attorneys’ fees for any foreclosure actions.
How Helpful Are Court “Help Centers”?
There are challenges that people encounter that may become legal problems, such as eviction or the untimely death of a loved one. Sometimes hiring an attorney can seem daunting during the most difficult time of one’s life. In response to public need, some Courts have help desks or help centers for unrepresented litigants. This post will describe the shortcomings of such help centers and our proposed solution from the perspective of Surrogate’s Court matters.
Probably nothing is more difficult than the death of a loved one. Not only are emotions heightened, but practical legal and financial issues need to be navigated. A Court’s help desk may provide procedural advice on the proper from that should be used, but may omit specific advice on how to actually complete the form or other general legal advice. Laypersons are ill-equipped in possessing the technical knowledge that an experienced attorney has to complete all documents required for a successful Court filing so that the Court can appoint a legal fiduciary to handle estate affairs.
A qualified attorney will recognize complex estate matters and will be more readily able to make the proper Court filings that the Court will require. Otherwise, the Court will inevitably delay the case when it requests additional filings that an experienced attorney would have already anticipated. Of course, a legal expert is required for contested estates, where a party challenges the validity of a Will being submitted for probate or other contested matters such as who may be the best person to serve as the fiduciary of the estate. Other examples of complex estates may entail those with non-marital children, a handwritten will submitted for probate or multiple wills presented for probate. A Court’s help center does not provide legal representation and cannot provide the personal attention that a survivor needs in complex estate matters.
Foreclosure Protections in New York – When do They Apply?
As long-time readers of this blog may be aware, New York State has significant protections in place for defendants in foreclosure actions. These legal requirements are meant to ensure that a homeowner is allowed an opportunity to defend his case, or at least be aware of a pending and existing foreclosure matter, and allow him an opportunity to enlist experienced legal counsel in order to protect his interest in his property.
With the economy in recession, and home interest rates having significantly risen due to efforts to forestall inflation, many borrowers now find themselves at risk of foreclosure. The first legal protection in place is that if the home loan is in default, the lender must give a written notice of one hundred and twenty (120) days prior to commencing a foreclosure action. Other legal notices may also be required to be sent by the lender (or their attorneys) prior to a lawsuit being filed.
Once a lawsuit commences and an Answer is filed, the Court will then schedule a foreclosure settlement conference. Under New York law, the matter cannot proceed further until all parties meet in a settlement conference to discuss the case and attempt, in good faith, to negotiate a resolution. Depending upon the results of the settlement conference, the Court may schedule additional conferences, as the lender may require submission of financial documents from the borrower so that a loan modification can be negotiated and approved. If a loan modification is made, the borrower must show that he is complying with its terms by making regular payments before the foreclosure case can be dismissed.
Happy Thanksgiving
Weiss & Weiss would like to wish all a Happy Thanksgiving 2024.
Bagels With a Side of Injunction
Recently in the news is a story about a bagel store in the West Village neighborhood in Manhattan which became an “internet sensation” and its resulting popularity is causing problems with its landlord. It seems that, according to the landlord, the store has been unable, or unwilling, to accommodate the large crowds seeking its bagels, and this has created lines out in the sidewalk and street, which the landlord has claimed is a violation of its lease.
The situation raises many legal questions, a discussion of which should be helpful to both commercial landlords and tenants who may find themselves in similar situations.
First, what happens in a legal sense once a landlord believes that a tenant is violating the terms of the lease? In general, most violations of a commercial lease will cause the landlord to issue a Notice to Cure. What this means is that the landlord, or their managing agent or attorney, will serve a Thirty Day Notice to Cure on the tenant. This document will formally notify the tenant that it is not in compliance with a material term of its lease, and that the tenant now has thirty days to cure the violation. In the case of Apollo Bagels, the landlord stated in its thirty-day notice that the lease was being violated in that business was being conducted outside of the premises, and that the lines of customers outside the store created a nuisance or unreasonable annoyance, another breach of the lease.