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Understanding New York’s Foreclosure Abuse Prevention Act

2/3/2025

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In December 2022, Governor Hochul signed the Foreclosure Abuse Prevention Act (FAPA) into law. This legislation aims to prevent lenders from abusing the foreclosure process, ensuring more fairness for homeowners.

Background and Purpose
The Foreclosure Abuse Prevention Act was introduced in response to a 2021 court case (Freedom Mortgage v. Engel) that allowed mortgage lenders to manipulate the statute of limitations in foreclosure cases, giving them an unfair advantage over homeowners. The new law restores the original statute of limitations and prevents lenders from exploiting loopholes to extend the foreclosure process indefinitely.

Key Provisions of the Act

1.    Restoring the Statute of Limitations: One of the primary goals of FAPA is to restore the six-year statute of limitations for mortgage foreclosure actions. This means that lenders must begin foreclosure proceedings within six years of the date of default. The Act prevents lenders from unilaterally stopping and restarting the statute of limitations to revive time-barred actions.
2.    Restricting Voluntary Discontinuances: The Act addresses the issue of voluntary discontinuances, where lenders could pause the foreclosure process and restart it later to extend the statute of limitations. Under FAPA, once a foreclosure action is started, lenders cannot voluntarily discontinue the process to reset the statute of limitations.
3.    Protecting Homeowners: FAPA aims to protect homeowners from abusive practices that disproportionately affect communities of color. By preventing lenders from manipulating the foreclosure process, the Act ensures that homeowners have a fair chance to defend their rights and avoid unjust foreclosures.

Impact on Homeowners and Lenders

The new law is significant for both homeowners and lenders. For homeowners, the Act provides protection against unfair foreclosure practices. It ensures that they have a clear understanding of their rights and the timeline for foreclosure proceedings. This transparency helps homeowners make informed decisions and seek legal assistance if necessary. Lenders must now adhere to stricter guidelines and cannot exploit loopholes to extend the statute of limitations. While this may pose challenges for lenders, it ultimately promotes a fairer and more just system for all parties involved.

Conclusion

New York's Foreclosure Abuse Prevention Act is a crucial piece of legislation that addresses long-standing issues in the foreclosure process. By restoring the statute of limitations and preventing abusive practices, the Act ensures a fairer and more balanced system for homeowners and lenders alike. As the Act continues to be implemented, it will be essential to monitor its impact and make any necessary adjustments to further protect homeowners and promote justice in the foreclosure process.
If you are in danger of foreclosure, or if you’ve already been sued, get legal advice from attorneys familiar with whether and how the new law might help you.
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No More Broker Rental Fees for Tenants in NYC

11/20/2024

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The New York City Council has passed a local law that will force landlords who hire real estate brokers to rent their apartments to pay the associated fee, instead of having the tenant pay.

The law, which goes into effect in the summer of 2025, is called the FARE Act – Fairness in Apartment Rentals. It seeks to eliminate the typical 10 to 15% fee that tenants typically pay the landlord’s broker when they sign a lease.

“I believe that this bill will give tenants bargaining power,” said City Council member Chi Ossé of Brooklyn, who sponsored the legislation. “It will give them more mobility to move from one apartment to another.”

The law passed through the Council with aa big enough majority that even if the mayor vetoes the bill, the Council has the votes to override him.

The law makes it illegal for a landlord’s broker, or a broker who lists an apartment for rent, from collecting a fee from the renter. But apartment hunters who hire their own broker are still on the hook for the associated fees. A broker who violates the new law could be fined anywhere from $500 to $2,000 and could be sued in court for damages. 

While landlords would be prohibited from baking the fee into the rent, it is not clear how the city plans to stop property owners from increasing rents to cover the added cost of brokers’ commissions.

Many real estate professionals, and some city council members, argued that the new law will not work as intended. They fear that the law will cause higher rents and fewer rental listings.

You can read more about the new law on the city council’s website, council.nyc.gov. Search for file # Int 0360-2024. If you’re reading this article online, this link will take you there.
 
Roger A. Levy is a founding member of Levy & Nau P.C., where he practices law in the fields of real property, estates, wills, trusts and related litigation. When not flying a desk, Roger flies a twin-engine Cessna 337 Skymaster. He also holds the rank of Major in Civil Air Patrol, the official Auxiliary of the US Air Force, and commands CAP’s New York City Group.
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Navigating in the Air and On the Ground

3/5/2024

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I’ve been a lawyer for some 35 years. About halfway through my career, I finally found the time and resources to pursue my lifelong dream of becoming an aviator. Most days you can find me flying a desk, but on good days, you’ll find my flying N685V, my twin-engine Cessna Skymaster.

Being as obsessed with flying as I am, I tend to see things through lenses polished with avgas. If there’s an analogy between something and flying, I will find it and tell you about it until I’m grounded.
So too it is with aviation and the practice of law. There are common themes. There are ways of operating in the legal and aeronautical domains that the legal and aviation communities can recognize in each other.

1. Precision and Detail Orientation


Flying and legal practice both demand meticulous attention to detail.
Planning a flight requires careful consideration of factors like weather, aircraft weight and balance, fuel planning and route optimization. Similarly, as legal professionals we meticulously analyze statutes, case law, regulations, and contractual terms to construct arguments or agreements that get our clients to their destinations.

Once in the air, safe flying is all about following procedures consistently. Climb out at the same attitude and airspeed. Have the same power settings consistently at each key point in your approach to landing. Touch down at the same target airspeed every time.
Litigation is nothing if not following and using procedures. Use a checklist when preparing for a real estate closing. Follow the CPLR in motion practice. Pay attention to individual judges’ rules.

2. Risk Assessment and Mitigation


Pilots assess risks at every stage of flight. We train to pay attention to what could kill us in each phase of flight. Taking off, we focus on runway winds, power settings, acceleration. In cruise, we monitor our flight path relative to what ATC expects. We keep an eye on engine instruments. How’s the oil pressure? Approaching to land, we’re mindful of conflicting traffic, runway conditions, aircraft configuration.

As lawyers we evaluate and mitigate risks too, whether in litigation, contract negotiation, or compliance. The mark of the professional in both domains is an attitude intent on minimizing adverse outcomes through careful planning and contingency measures.

3. Compliance and Regulations


Aviation operates within strict regulatory frameworks. Flight plans must adhere to a specific format. Everything from airplane certification to pilot training and currency requirements is heavily regulated. Aviators, air traffic controllers and mechanics are expected to know and understand hundreds of regulatory details. Similarly, as legal practitioners navigate statutes, precedents, and ethical guidelines. Non-compliance can lead to serious consequences—be it a flight deviation or a legal violation.

4. Dynamic Decision-Making


Pilots always face the prospect of adapting their flight plans mid-flight due to weather changes, ATC needs, or emergencies. Plan the flight, fly the plan, but always be prepared to deviate in the interest of safety.
Lawyers face similar dynamics—adjusting strategies during discovery, trial or negotiations. Both professions require quick thinking, assessing new information, and making informed decisions.
Decades ago, an Air Force pilot, Col John Boyd, developed a combat information-processing model that came to be known as the OODA Loop: Observe, Orient, Decide, Act. Repeat. That model applies equally well to any dynamic situation, whether it be air combat, a VFR cross-country flight, or cross-examination of a hostile witness.

5. Balancing Efficiency and Safety


Flight planning aims for efficient routes while ensuring safety. We try to balance groundspeed, distance, fuel consumption and time, with an eye to getting to our destination efficiently and safely. Legal professionals perform an analogous balancing act, constantly juggling client interests, business expediencies, deadlines, and ethical obligations. Just as (most) pilots avoid turbulence, lawyers try to navigate legal complexities without upsetting our clients’ sense of well-being.

6. Communication and Coordination


Pilots communicate constantly with mechanics, ATC, crew, and passengers. Lawyers have to do the same with clients, opposing counsel, judges and clerks. Effective communication – clear, concise and unambiguous - ensures smooth operations in the cockpit and the courtroom.

7. Preparedness and Contingency Plans


Pilots anticipate emergencies. We train for them. Ideally, we know ahead of time what we’ll do if we don’t reach 70% of our planned takeoff speed by the time we’re halfway down the runway. In the air, we always should have an alternate airfield in mind if we need to divert.
Lawyers do something similar when we draft contracts with exit clauses and dispute resolution mechanisms. Both professions recognize that unforeseen events require adaptable plans.

8. Ethical Considerations


Professional aviators adhere to safety protocols. Good pilots don’t cut corners when it comes to safety of flight. Lawyers uphold ethical standards, safeguarding client confidentiality and maintaining trust. Both communities prioritize integrity and accountability.

Conclusion


Whether the workplace I’m in is the cockpit in my airplane or my law firm office, whether airborne or in the courthouse, I try to operate with the same set of core principles: careful planning, risk assessment and mitigation, compliance, and adaptability. These are the tools that put the odds of success in my favor when I’m flying and when I’m litigating.

​I have a destination in mind when I fly and when I take on a client matter. How I get there will depend on the choices I make at each stage of the journey.
 
Roger A. Levy is a founding member of Levy & Nau P.C., where he practices law in the fields of real property, estates, wills, trusts and related litigation. When not flying a desk, Roger flies a twin-engine Cessna 337 Skymaster. He also holds the rank of Major in Civil Air Patrol, the official Auxiliary of the US Air Force, and commands CAP’s New York City Group.
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Let Buyer and Seller Beware

12/31/2023

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Caveat Emptor is a Latin phrase you sometimes hear in real estate transactions. It translates to English as let the buyer beware. If you are buying or selling property, this ancient principle affects you.

As a buyer, you can and should inspect the property you want very thoroughly and carefully before you sign a contract. The best time to find problems is before you commit to a contract. As a buyer, it is your responsibility to find any problems that matter to you, such as plumbing or electrical issues. Better to go to contract with your eyes open than to get into a legal fight with the seller after the fact.
While the burden is on the buyer to find problems that a thorough inspection would reveal, there is no corresponding obligation for the seller to point out defects in the property being sold. If a buyer does not notice a visible crack in the foundation until after the closing, for example, the buyer cannot sue the seller for having sold a defective house. Sellers have no duty to say anything, good or bad, about their property.

But if a seller actively conceals a defect, that could be considered fraud, and a buyer could make a claim against the seller later on.
That is what happened in the case of Striplin v. AC &E Home Inspection Corp., decided in July 2023. The plaintiff buyers bought a house in Suffolk County, and after the closing, they discovered extensive damage due to leaking water. The Supreme Court judge dismissed their case, invoking the “buyer beware” doctrine.

On appeal, however, the lower court’s decision was reversed, and the case was allowed to proceed. The Appellate Division held that the “buyer beware” doctrine generally applies, but it does not protect a seller who takes affirmative steps to conceal a defect. In this case, the seller covered up the water damage by covering damaged and rotted wood with new wood, such that the serious damage was hidden and impossible to detect.

This action by the seller, said this court, constituted fraud by the seller, and the buyers had a valid claim for that. The buyers still had to prove their case, and they were entitled to a chance to do so. It was wrong to dismiss the case outright.

There are lessons for both sides in this case. If you are buying, inspect everything carefully, and hire a professional inspector who might spot things you might not be aware of. If you are selling, talk about your property’s benefits, but do not actively hide problems. And for both buyer and seller, find and get to know a good attorney, and never sign any document concerning your home or other assets without consulting your lawyer first.

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Public Service Announcement

4/17/2020

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We’re all doing what we can to work our way through the coronavirus crisis. While most of us focused on working through these crazy times as best as we can, there are unscrupulous people out there intent on taking advantage of whoever they can, whenever and wherever they can.
 
The FBI has issued three press releases describing three different COVID-19 frauds. Here are the links:
  • https://www.fbi.gov/news/pressrel/press-releases/fbi-warns-of-advance-fee-and-bec-schemes-related-to-procurement-of-ppe-and-other-supplies-during-covid-19-pandemic
  • https://www.fbi.gov/news/pressrel/press-releases/fbi-expects-a-rise-in-scams-involving-cryptocurrency-related-to-the-covid-19-pandemic
  • https://www.fbi.gov/news/pressrel/press-releases/fbi-warns-of-emerging-health-care-fraud-schemes-related-to-covid-19-pandemic
 
If you suspect that you or someone you know has been the victim of a covid-19 related fraud – or attempted fraud – or if you have information about unlawful hoarding or price gouging, you can:
  • Contact the National Center for Disaster Fraud hotline at 866-720-5721 or via email at [email protected]
  • Report it to the FBI’s Internet Crime Complaint Center at ic3.gov
  • Contact your local FBI field office or submit a tip online at tips.fbi.gov
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COVID-19 Tax scams

4/17/2020

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From my friends at the FBI:

The Internal Revenue Service urges U.S. taxpayers to beware of telephone calls and email phishing attempts regarding COVID-19. These can lead to tax-related fraud and identity theft. Taxpayers should also look out for suspicious websites, text messages, and social media messages that request money or personal information.

Actions to Take:
  • Forward unsolicited emails, text messages, or social media attempts to gather information that appear to be from either the IRS or an organization closely linked to the IRS, such as the Electronic Federal Tax Payment System (EFTPS), to [email protected].
  • Do not engage potential scammers online or on the phone. Learn more about reporting suspected scams by going to the Report Phishing and Online Scams page at www.irs.gov.
  • Find official IRS information about the COVID-19 pandemic and economic impact payments at https://www.irs.gov/coronavirus-tax-relief-and-economic-impact-payments

The Internal Revenue Service also released a new tool that allows individuals to check the status of their Economic Impact Payments. For more information, please see the Internal Revenue Service’s website.
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Wills in the Age of Coronavirus

4/15/2020

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As I sit at my computer, on day 29 of operating the law practice remotely, I hope that our extended family of clients, associates and their loved ones are making it OK through these uniquely trying times. I know, though, that not everyone is. People are dying. Judges I've appeared before have passed awat after contracting covid-19. Court personnel I see on a regular basis have fallen ill. But I know we will get through this.

I've been thinking about wills. I've revised my own. Do you have one? You should. No matter what degree of wealth you have, it is worth preserving on your own terms - not the government's terms. A will is one way to do that, either by itself or together with other estate planning tools such as trusts.

Wills must be witnessed in a specific way in order to be valid. Before the pandemic, we would gather a client, three witnesses and a notary together in our conference room for this purpose. That's impossible now, and may be difficult to pull off for some time even after we are allowed to re-open our office. Social distancing is here to stay for some time to come.

People still need wills, however. Fortunately, there is a solution. A temporary amendment to state law allows documents to be notarized remotely. You can sign a will or other document in one location while the notary is in another room, another city, or anywhere else on the planet. We can notarize documents - temporarily - using video conference technology. You don't need anything more than a smartphone at each end - and almost everyone has one of those.

What about the witnesses? Fortunately, the law concerning the witnessing of wills needed no temporary amendment. The answer is built right into section 3-2.1 of the Estates, Powers and Trusts law of New York State.The key is that the witnesses don't actually have to see you sign the will. They can, if everyone is in on a video conference. But even absent a video conference, you can send each witness a copy of your will - signed by you - and then get each witness on the phone and declare to them that the document they are holding is your will, signed by you, intended by you to be your last will and testament. Each witness can then sign their witness affidavit and send it back to us - your attorney - and now you have a valid will that meets the formal requirements of the law.

So stay healthy, stay six feet or more away from everyone in public - but think about your will - unless you're OK with the government telling you who gets your stuff in the end.
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Federal aid for NY Businesses affected by Coronavirus

3/21/2020

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FEMA has now officially declared NY State a major disaster area. This opens the propsect of emergency aid to New York businesses from the US Small Business Administration. Read the SBA press release and fact sheet here. 

Apply for assistance here: www.sba.gov/disaster

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What to do if NYC Inspectors Demand Access to Your Property

3/3/2020

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Do you have to allow DOB, DHCR, etc. access to your building? The answer is No IF they don’t have a warrant, BUT:
  • DOB will issue a summons for access. HPD and ECB usually gain access from the tenant
  • Even if you don’t see a warrant, be careful about being hostile toward inspectors.
  • IF DOB is seeking access for an inspection, you are sure to be issued violations. If you refuse access to cure those violations, you'll need to provide access to cure the violations, and once they gain access they will retaliate and issue you even more, and more expensive violations - and DOB is not cheap.
  • If ECB is seeking access to inspect, the same advice applies. You'll get a violation, and to clear it up you will have to provide access – and it will cost you plenty to settle the violation.
  • HPD will take you to court. It will cost you in attorney fees, followed by a possible civil penalty to settle the case.
  • DHCR only comes out when a tenant files a complaint, so access will be provided by the tenant eventually.
  • When DHCR wants access, they will get a court order. If you don't provide access after a violation is written for access, they will get a court order - there are judges whose job is just to sign court orders for access.
 
This information was derived from www.LandlordsNY.com, an excellent forum for owners of residential real estate in New York City.

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CONSTRUCTION CONTINUES IN bED-STUY

12/21/2019

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The trend of every empty space in Brooklyn being built upon continues. 324 Macon Street, between Marcus Garvey and Lewis, once upon a time was one of a row of historic brownstones. The block is part of the Bedford-Stuyvesant/Expanded Stuyvesant Heights landmark district. The building, built around 1889, was torn down around 1967.

Plans have been filed to build on the empty lot. Unlike many parts of Brooklyn where there is no landmark protection, here the project must actually fit in architecturally with the surrounding properties. That's good news for this historic block and the residents in the neighborhod.
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