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Hill Wallack Creditors' Rights/Bankruptcy Attorney Angela C. Pattison, Panelist for a Presentation hosted by The Association of the Federal Bar of New Jersey

05 Feb 2021

2021 Chapter 13 Symposium (Webinar)

Friday, February 5, 2021

Creditors’ Rights/Bankruptcy attorney Angela C. Pattison will be a panelist discussing Mortgage Forbearances and the C.A.R.E.S. Act.

Ms. Pattison will be joined by co-panelists, Kenneth Borger and Brian Caine, along with Trustee, Marie-Anne Greenberg, serving as moderator for the following session.

February 5th I Session 1 – 9:15 – 10:05 a.m.

- Foreclosure, Forbearances and Cares Act - Oh My!
- Life After COVID-19

Other Symposium Sessions include:

    - Six Feet From The Bench
    - Back To The Basics
    - The Circuits are Split
    - My Clients Love Me but Hate Each Other
    - Alternate Track For Paralegals

Click here for more information and registration.

5 NJ MCLE Credits have been requested toward NJ including 1 Ethics Credit and 4 CLE Credits have been requested toward PA.

Hill Wallack LLP Managing Partner Installed as President-Elect of the Mercer County Bar Association

22 Jan 2021

Princeton, NJ January 22, 2021 – Michael Kahme, Managing Partner of Hill Wallack LLP, was installed as President-Elect of the Mercer County Bar Association last night. The ceremony was held virtually via Zoom. Mr. Kahme will serve as President-Elect for a one-year term beginning in January 2021. Mr. Kahme has been active with MCBA since 1985, beginning with his service as a member of the Young Lawyers Committee. He also served as Trustee from 2010 – 2016, Secretary in 2018, Treasurer in 2019 and Vice President in 2020.

“I take great pleasure in continuing my service to the Mercer County Bar Association as President-Elect,” Mr. Kahme said. I look forward to partnering with our new President, Tanya Phillips, Esq. and my fellow officers and trustees. I am truly appreciative of my fellow members of the Bar Association for their confidence in me.”

Mr. Kahme also said, “more than ever, in the present circumstances, our members are immense resources for one another in determining how to address some of the challenges that our clients, and we as professionals are facing, and the Association provides the support our members need to strengthen their practices.

In addition to Mr. Kahme’s role as Managing Partner, he is a member of Hill Wallack LLP’s Creditors’ Rights/Bankruptcy and Corporate Law practice groups.He concentrates his practice in all matters of creditors’ rights and bankruptcy, including workouts, commercial foreclosures, asset purchases, receivership actions, pendente lite sales, lender liability lawsuits, representation of secured creditors in bankruptcy cases, commercial litigation and fraud litigation.

About Mercer County Bar Association

Located in Hamilton, NJ, the Mercer County Bar Association’s mission is to serve its members and to aid and instruct the public in matters pertaining to the law, the practice of law and the legal system and to promote the administration of justice in Mercer County, the State of New Jersey and the United States of America.

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Mortgage Servicing Considerations In Light of The Amendments Made To The United States Bankruptcy Code Under The Consolidated Appropriations Act

08 Jan 2021

Written by: Eric P. Kelner, Esq. and Kaitlin D. Shire, Esq.

Congress recently passed the Consolidated Appropriations Act (“CAA”), which was signed into law on December 27, 2020. In particular, the CAA amends various provisions of the United States Bankruptcy Code to assist borrowers in consumer bankruptcy cases. The following amendments are to sunset after one year, on December 27, 2021.

1. Discharge still permitted even if a Debtor has defaulted on post-petition payments or plan payments

The CAA amends Section 1328 of the Bankruptcy Code to permit the court to still grant a discharge to a Chapter 13 debtor even if at the time, the debtor has failed to pay up to three monthly payments due on a residential mortgage on or after March 13, 2020. The amendment also allows a discharge when the debtor has not completed plan payments on a cure and maintain plan, but has entered into a forbearance agreement or loan modification agreement with the mortgage holder or servicer. It is important to note that this amendment does not discharge the debtor from the debt owed on the mortgage. Rather, it simply allows a debtor to receive a discharge on other eligible debts.

2. Filing claims pursuant to forbearances granted under the CARES Act

As widely known, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), passed this past spring, entitles a borrower with a federally backed mortgage loan or a federally backed multifamily mortgage loan who has been impacted by the COVID-19 pandemic to a forbearance on their mortgage payments for up to six months, with the possibility of an additional six-month extension. While this has surely assisted many borrowers, its implementation has caused confusion and issues when the borrower is in a Chapter 13 bankruptcy, particularly as to repayment of the deferred amount once the forbearance period expires. The CAA has attempted to address that issue by amending Section 501 of the Bankruptcy Code to permit a servicer to file a supplemental proof of claim for the deferred amount or modified amount, should the mortgage subsequently be modified in connection with the forbearance. The proof of claim is permitted to be filed past the claims bar date, so long as it is filed within 120 days of the expiration of the forbearance period. This proof of claim must outline the relevant terms of the forbearance or modification, provide a copy of the forbearance or modification if it is reduced to writing, and include a description of the deferred payments.

After a servicer has filed this supplemental proof of claim, the debtor may file a request to amend the plan to provide for the claim. Should the debtor fail to do so within thirty days of the filing of the supplemental proof of claim, the court, upon its own motion or upon the motion of any party in interest, may request the plan be modified to provide for the claim.

3. Protection for Debtors Against Discriminatory Treatment

Finally to note, Section 525 of the Bankruptcy Code has been amended under the CAA to specifically prohibit servicers from denying borrowers relief pursuant to certain CARES Act provisions, including the federal foreclosure moratorium and the above-described right to request a forbearance on a federally backed mortgage loan or a federally backed multifamily mortgage loan solely because the borrower is currently or was a debtor in a bankruptcy.

©2021 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020

06 Jan 2021

Written by: Eric P. Kelner, Esq. and Keith M. Salmeri, Esq.

On December 28, 2020, Governor Andrew Cuomo signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “EEFPA”). While much coverage has been given in the press to the EEFPA’s eviction rule changes, the law also has dramatic effects on the New York foreclosure landscape which took effect upon the signing of the law. In conjunction with the EEFPA, on December 31, 2020, Justice Lawrence Marks, chief administrative judge of the courts of New York, issued an accompanying order and memoranda on how the courts intend on implementing the EEFPA.

With regards to foreclosure actions, the act affects foreclosure actions at all stages of litigation and in some cases places new requirements on lenders seeking to foreclose on New York residential mortgages. The EEFPA’s foreclosure provisions are centered around a new COVID-19 Hardship Affidavit (the “Affidavit”), the language of which is included in the EEFPA’s text. Currently the Affidavit has been provided in English and Spanish, but the EEFPA has required translation into the 6 most commonly spoken languages in New York City after English and Spanish. According to the Court’s memoranda, other translations will be made available “as practicable”.

In terms of applicability, the EEFPA’s requirements applies to all foreclosure actions involving a mortgage relating to real property if the owner or mortgagor is a natural person and owns ten or fewer dwelling units. Notably, the requirements do not apply to vacant and abandoned properties which are defined as properties that were first listed with the New York vacant property electronic registry before March 7, 2020. The EEFPA also does not affect mortgages “made insured, purchased or securitized by a corporate governmental agency of the state as a political subdivision and public benefit corporation.”

PRE-FORECLOSURE

Although technically there is no moratorium on filing new foreclosure actions, the EEFPA now requires pre-foreclosure notices under Real Estate Property Actions and Proceedings Law (“RPAPL”) § 1303 and § 1304 to include the Affidavit before the filing of a foreclosure action. The Affidavit must be in the borrower’s “primary language” and if that is not provided by the Courts, then it is the lender’s responsibility to obtain a suitable transaction. In the event a borrower returns the Affidavit to the lender or the lender’s agent, no foreclosure action may be initiated until May 1, 2021.

Additionally, the filing of a foreclosure Complaint must now include an affidavit of service of the Affidavit as well as an affidavit from the lender or lender’s agent stating that no executed Affidavit has been received from the borrower. Further “at the earliest possible opportunity” following a new filing, the Court is required to seek, on the record or in writing, that the borrower received the Affidavit and has not submitted an executed Affidavit. If the Court finds the borrower did not receive the Affidavit, the Court must stay proceedings for no less than 10 business days to allow the borrower to consider execution of the Affidavit.

PENDING FORECLOSURES WITHOUT JUDGMENT

As for pending foreclosure matters, all pending foreclosure matters, including those filed before March 7, 2020 and those filed by January 27, 2021 are stayed for sixty (60) days. During the sixty (60) day stay, the Courts are required to mail borrowers the Affidavit in English, and, “to the extent practicable”, the borrower’s primary language if other than English. If the borrower provides an executed Affidavit to the lender or the Court, the pending foreclosure matter is stayed until May 1, 2021.

PENDING FORECLOSURES WITH JUDGMENT

For foreclosure actions in which judgment has been entered but no sale has taken place, including actions filed before March 7, 2020, all such proceedings are stayed “at least until the Court has held a status conference.” There is no stated purpose or goal of the conferences, but if a borrower returns an executed Affidavit to the Court or the lender, the sale is stayed until May 1, 2021.

CONCLUSION

Although the administrative order and memoranda from the Courts provided some clarification as to the implementation of the EEFPA, there are still many questions left unanswered. Notably, it is unclear how lenders, or even the Court, are expected to know the borrower’s primary language if it is not English. Furthermore, for pending foreclosure matters that have not had a request for judicial intervention filed, how will the Courts know notices are to be sent or where to send them considering service has not been completed? Are all pre-foreclosure notices now improper by virtue of their failure to include the Affidavit, even though it was not in existence when the notices were mailed? It is also unclear why the bill requires a conference for all matters at judgment when the Court’s previous Administrative Order 157/20 already mandated conferences be held to determine the effect COVID-19 had on borrowers. Requiring yet another conference when most pending foreclosure matters have already had one if not two COVID-19 conferences seems redundant.

Lastly, although the above requirements are set to expire on May 1, 2021, assuming this deadline is not extended, it is curious that the Legislature chose such an expansive range of foreclosure matters. Unlike the prior Administrative Orders issued by the Courts, which were largely targeted at individuals who defaulted around the time of the COVID-19 crisis, the EEFPA’s requirements effect all pending actions. Therefore, a property that has been under foreclosure since 2015 in which the borrower defaulted in 2014 is treated the same as a party whose default occurred in 2020 as a direct result of COVID-19 related unemployment.

Click here to view the text of the EEFPA. The accompanying administrative order can be found here.

Setting these issues aside, lenders are recommended to review the terms of the EEFPA to ensure their compliance with the same, especially as it relates to pre-foreclosure notices. Our office will continue to monitor development in the implementation of the EEFPA. Any questions relating to the EEFPA or general questions related to New York foreclosures, please contact Eric P. Kelner or Keith M. Salmeri.

©2021 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

Hill Wallack Community Associations partner Caroline Record Panelist for The Cooperator Events Virtual Town Hall

03 Dec 2020

Hill Wallack LLP Community Association partner Caroline Record will be participating in The Cooperator Events Presents a Virtual Town Hall: Lessons Learned - Virtual Meetings, Electronic Elections, & What Radburn Means to Your HOA.

Caroline Record is a partner in the Cedar Knolls, N.J. office of Hill Wallack LLP, where she is a member of the Community Associations and Real Estate practice groups. Ms. Record concentrates her practice in the area of community association law and residential real estate.

This webinar is sponsored by: Taylor Management Company, Marie D. Mirra, CPA & Associates and Hill Wallack LLP.

To view the webinar, click here.

Hill Wallack Community Associations partners Participate in CAI-PA/Del Val New Jersey Regional Council Mini-Trade Show Educational Session

13 Nov 2020

On Friday, November 13, 2020, George Greatrex, Esq., Hill Wallack LLP partner and chair of the CAI-NJ Legislative Action Committee (LAC), will be participating in the virtual CAI-PA/Del Val New Jersey Regional Council Mini-Trade Show. George will be speaking about recent legislation and regulations and provide an update on pending legislation. The program will also contain a review of this year’s relevant case law. The program will be moderated by Jonathan Katz, Esq., Hill Wallack partner and President-Elect of the CAI-PA/Del Val chapter.

In addition to the legal and legislative update, participants will be able to meet with exhibiting business partners in speed dating style via Zoom. You will have small group time with each exhibitor where they can tell you about the products, services, and expertise they offer and you can get your questions answered.

Friday, November 13 | 8:30 a.m. - 12:00 p.m. | via Zoom

George C. Greatrex Jr., a partner in the Cherry Hill, N.J. office of Hill Wallack LLP, is a member of the firm’s Community Associations practice group. Spanning the past 30 years, George has devoted a large portion of his practice to the burgeoning area of community association law in New Jersey, representing all forms of common interest communities, including condominiums, townhomes, and single family detached homes. He is the current Chair of the CAI-NJ Legislative Action Committee, and is a frequent lecturer to board members, property managers and lawyers on the issues facing community associations in New Jersey.

Jonathan H. Katz is a partner in the Princeton, N.J. office of Hill Wallack LLP and a member of the firm’s Community Associations practice group. Mr. Katz concentrates his practice in the areas of community association law and general litigation, representing condominium and homeowners associations throughout New Jersey and eastern Pennsylvania.

Consumer Financial Protection Bureau Issues Final Rule To Revise Regulation F of The Fair Debt Collection Practices Act

13 Nov 2020

Written by: Sean D. Adams, Esq.

Section 1033 of the Dodd-Frank Act of 2010 tasks the Consumer Financial Protection Bureau (“CFPB”) with implementing rules for consumer financial services related to the Fair Debt Collection Practices Act (“FDCPA”). On October 30, 2020, the CFPB released a final rule to restate and clarify practices by debt collectors when collecting consumer debt. The final rule to revise Regulation F of the FDCPA focuses on how often a debt collector can communicate with a debtor and on what means a debt collector can communicate with a debtor.

The Rule issued by the CFPB clarifies the FDCPA’s general prohibition on harassing, oppressive, or abusive conduct applies to telephone calls as well as other communication media, such as email and text messages. The Rule states that a debt collector does not violate the Rule regarding unusual or inconvenient places by calling a consumer’s mobile telephone or sending an electronic communication, unless the debt collector knows the consumer is at an unusual or inconvenient place. The Rule also clarifies that all of a debt collector’s conduct, taken together, is considered in determining whether the debt collector’s conduct violates the prohibition on harassing, oppressive, or abusive conduct even if, individually, the conduct would not have violated the prohibition. The debt collector is presumed to comply with the prohibition if the debt collector places telephone calls to a particular person in connection with the collection of a particular debt seven or fewer times within seven consecutive days and not within seven consecutive days after having had a telephone conversation about the debt.

Furthermore, the Rule provides relevant examples demonstrating how the prohibition restricts emails and text messages.

For instance, the Rule advises that a debt collector who communicates via text message must communicate a reasonable and simple method that the debtor can use to opt out of additional text messages (i.e.“Reply STOP to stop texts to this telephone number”). This requirement applies to a specific email address, telephone number, or other electronic medium address (such as a social media name or account). If a debtor opts out of receiving electronic communications from a debt collector, a debt collector may respond once, confirming the debtor’s request to opt out and stating that the debt collector will honor it.

The Rule further clarifies use of social media by debt collectors. Under the Rule, a debt collector must not publicly post a message regarding the collection of a debt on the debtor’s social media page. However, a debt collector may send a private message over social media unless the debtor advises the debt collector not to use that forum to communicate.

Additionally, the Rule was revised and now requires the debt collector to retain evidence of compliance or noncompliance starting on the date that the debt collector begins collection activity on a debt until three years after the debt collector’s last collection activity on the debt. If a debt collector chooses to record telephone calls, a debt collector must retain those recordings for three years after the date of the telephone call.

Lastly, the CFPB states that a second “disclosure-focused” final rule, which deals with debt validation notice and time-barred debt disclosures, will be implemented in December 2020.

Hill Wallack LLP will provide an update once the second final rule is implemented in December 2020.

If you have questions about this or any other issues, please contact one of our creditors' rights/bankruptcy attorneys.

©2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

Hill Wallack Community Associations partner Loren R. Lightman to present at Community Association Institute NJ Chapter Virtual Roundtable Discussion

05 Nov 2020

On November 5, 2020 | 3:00 pm – 4:30 pm, Loren R. Lightman will be discussing Re-Opening Communities Post COVID-19.

Other topics include: Insurance Needs for Events and 3rd Parties ; Best Practices for Snow Maintenance; Collections During COVID-19; and HVAC & Filtration Systems. For more information on this event, click here.

Loren Rosenberg Lightman is a partner of Hill Wallack LLP in the Princeton, N.J. office. She is a member of the firm's Community Association Law practice group. Ms. Lightman has been practicing law for over 20 years and concentrates her practice in the representation of community associations. She assists her clients in all aspects of community association law including, but not limited to document interpretation, rules and regulations and also provides advice relative to municipal services and contract and collection matters.

COVID-19 Guidance for Halloween in Community Associations

29 Oct 2020

“Spooky scary skeletons
Send shivers down your spine
Shrieking skulls will shock your soul
Seal your doom tonight”

Like everything else, Halloween will look a little different in our community associations this year thanks to COVID-19. In response to the pandemic, both the Centers for Disease Control and Prevention (“CDC”) and the New Jersey Department of Health (“NJDOH”) have issued “Halloween Celebration Guidance” to be followed when trick or treating or just celebrating the season.

While most of this guidance, which includes social distancing, wearing a mask, washing hands frequently, etc., should not be new to anyone, there are some good suggestions for those who plan to either give or receive candy. And remember that your Jason Voorhees, Michael Myers, or other costume masks are not acceptable substitutes – incorporate a cloth mask into your costume. Most importantly, have fun and stay safe!

For the full CDC guidance, click here.

For the full NJDOH guidance, click here.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

Hill Wallack Community Associations Partner George Greatrex, Jr. to speak at CAI-NJ's Legislative Action Committee Update

27 Oct 2020

Join George Greatrex, Esq., Hill Wallack LLP partner and chair of the CAI-NJ Legislative Action Committee, as he moderates this virtual legislative update to connect with the experts about what’s going on in Trenton. This event, presented by the NJ Legislative Action Committee, will provide you with an insider’s view and the most up-to-date information on issues affecting common interest communities in New Jersey.

Tuesday, October 27, 2020 | 12:00 p.m. - 1:30 p.m.