“It’s Not You Per Se, It’s How You Got Involved in This Case”: The Allegedly Incapacitated Person’s Right to Retain Counsel of Choice, Even When Incapable of Making That Choice

In adult guardianship cases, there is an inherent tension between recognizing that an adult has diminished capacity to make decisions for herself, and recognizing that this same individual, who may be incapable of making sound decisions, remains free to retain an attorney of her own choice to represent her interests in connection with a petition to have a guardian appointed.

It is this tension that the Supreme Court, State of New York, County of Bronx explored in its November 25, 2014 decision in Matter of Caryl S.S., 91809/14, NYLJ 1202678313480, at *1 (Sup., BX, Decided November 25, 2014).  Caryl S.S. petitioned for the appointment of a guardian for her mother, Valerie L.S., an allegedly incapacitated person (the “AIP”), who was 92 years old and suffered from the effects of a recent stroke.  Caryl S.S. sought to be appointed as guardian for the AIP, and her petition was apparently opposed, at least indirectly, by the AIP’s son, Caryl S.S.’s brother, who wished to retain the authority granted to him as the AIP’s agent under a health care proxy and power of attorney.

At the start of every adult guardianship case, the Court appoints an attorney from lists maintained by the New York State Unified Court System of attorneys who have met certain educational, professional, and ethical standards, and are therefore eligible to represent allegedly incapacitated adults in guardianship cases.  However, any adult alleged to be incapacitated has an absolute right, under Section 81.10(a) of the Mental Hygiene Law, to retain a different attorney to represent her if she wishes.  It is the duty of the counsel for the AIP and Court Evaluator appointed by the Court to inquire as to whether the AIP wishes to proceed with Court-appointed counsel, or wishes to retain substitute counsel and, if the AIP wishes to retain substitute counsel of her choice, the Court must then determine whether “retained counsel has been chosen freely and independently.”

This is where the process really gets tricky.  “Freely” and “independently” are complicated inquiries under any circumstance, and much more so when the individual in question may be incapacitated.

In the Caryl S.S. case, the Court made a lengthy and thorough inquiry into the circumstances of the AIP’s retention of counsel, and determined that it was not the AIP herself, but the AIP’s son, who retained counsel.  In the guardianship context, it is not unusual for adult children of allegedly incapacitated adults to research and vet potential counsel, and even to meet with prospective counsel prior to retention and accompanying prospective counsel to meet with a home-bound parent.  While this situation is perhaps not what immediately comes to mind when we think of “free” and “independent” retention of counsel, it is not necessarily out of line for a concerned child to set a retention in motion for a parent who is either unable to do so or not interested in doing so.

What is problematic, however, is when an adult child, who is himself defending allegations of unduly influencing the AIP and transferring the AIP’s property to himself without authority to do so, unilaterally installs an attorney for the AIP, and takes steps to prevent the AIP from speaking with the Court Evaluator appointed by the Court, and even from appearing before the Court for the Court to make an in-person inquiry into the AIP’s capacity.  It is doubly problematic when, as here, the AIP does not know the name of the attorney representing her, and cannot articulate even a basic understanding of the legal issues causing her to have retained the attorney in the first place.

In such a situation, the Caryl S.S. Court opined, the AIP’s counsel was not the free and independent choice of the AIP, who lacked “any real comprehension or understanding of her own interests.”  Accordingly, while the Court did not ascribe any ill will or actual impropriety to the attorney retained by the AIP’s son, it nevertheless disqualified the attorney on the basis of apparent improprieties in the circumstances surrounding the retention:  “It’s not you as an attorney per se, it’s how you got involved in this case.”

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Second Circuit Rules That Debt Dispute Need Not Be in Writing

The Fair Debt Collection Practices Act (FDCPA) requires debt collectors to send their debtors written notice containing certain information, including the amount of the debt, the name of the creditor, and a statement informing debtors that they have thirty (30) days to dispute the validity of the debt, or the debt collector will assume that the debt is valid.  Debt collectors have long taken the position that any dispute as to the validity of a debt must be in writing.  The Third Circuit (Delaware, New Jersey, Pennsylvania, and U.S. Virgin Islands) has agreed with this position; the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington) has taken the opposite view.

This may seem like the sort of thing that would not come before the courts very often, and for the most part, that has been the case.  Debt collectors and debtors alike usually assume that any sort of dispute must be in writing, as the FDCPA specifies that other disputes must be in writing to be effective.

It is this failure on the part of the FDCPA’s drafters, whether or not it was intentional, to specify whether debt disputes must be in writing that appears to have doomed the traditional viewpoint of the debt collection industry and the Third Circuit, at least here in the Second Circuit (Connecticut, New York, and Vermont).  The Second Circuit recently ruled that the FDCPA does not require debt disputes to be in writing, in part because the plain language of the FDCPA specifically does not include a writing requirement, and in part because the right to dispute a debt is so fundamental that even those individuals who are unable to write, or who can write only with great difficulty, should not be deprived of the opportunity to exercise such an important right.

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UPDATED: If You are Being Sued on a Consumer Debt, and are Considering Defending Yourself in Court, You Must Read This!

Lawyers, especially in consumer debt cases, hear it all the time:  “Why do I need a lawyer?  Can’t I do this myself?  I already owe so much money, I really can’t afford to pay a lawyer AND pay my debts!”

In some cases, I agree with potential clients who take this view.  There is certainly nothing stopping a consumer debtor from calling up a creditor or their attorneys and requesting to settle a debt.  Many times this will provide a degree of much-needed relief for the consumer.  What many consumers do not realize, however, is that the willingness of a creditor or debt buyer to settle a delinquent account is inversely proportional to the validity of the claim against the debtor.  In other words, if the creditor is quick to settle, a smart debtor should always question if the debt is valid to begin with.

This has been a hot-button issue in New York, especially in light of the spate of credit card defaults in the recently depressed economic climate.  New York generally has a six-year statute of limitations for credit card default, which means that a creditor or debt buyer has six years from the date of the debtor’s last payment to bring an action seeking a judgment against the debtor.  However, most credit card companies and debt buyers are neither incorporated nor headquartered in New York so, under New York law, the economic harm suffered by out-of-state creditors occurs outside of New York, and such creditors cannot take advantage of the long New York statute of limitations period if a shorter limitations period applies in the state where the creditor is located.

Take, for instance, the now-infamous case Portfolio Recovery Associates, LLC v. King, which was decided by the New York Court of Appeals on April 29, 2010.  In that case, Portfolio Recovery Associates, LLC bought a delinquent Discover Bank credit card account.  Discover Bank is a Delaware corporation headquartered in Delaware, and even includes a clause in its credit card agreements specifying that Delaware law applies to any disputes regarding its credit card accounts.  The consumer who defaulted on the Discover account in question lived in New York, and had last made a payment on the account in December 1998.  Portfolio Recovery sued the consumer in New York state court in April 2005, and claimed that under New York law the lawsuit was not time-barred.  The New York Court of Appeals, the highest state court in New York, ruled that, even if the credit card agreement specified that Delaware law would govern in any disputes, the question of which statute of limitations should apply is governed by New York CPLR 202, which requires both out-of-state creditors and debt buyers to comply with the statute of limitations where they are located, and where they suffered their economic loss.  Therefore, Portfolio Recovery needed to bring its lawsuit against the debtor within the Delaware limitations period, which is only three years.   To the dismay of creditors everywhere, the United States District Court, Eastern District of New York, applying New York law, later held that the King case did not make new law, but merely clarified existing law, therefore King was effectively retroactive, and default judgments already in existence could be vacated.

Needless to say, these cases rocked the foundation of the credit card industry.  Lawsuits on delinquent credit accounts are generally handled by a small number of firms that specialize in debt collection actions, and these firms bring tens of thousands of lawsuits against New York consumers each year.  Many of these lawsuits are filed by these firms knowing that the limitations period has run, but these firms know that most consumers are strapped for cash, and probably won’t be represented by counsel.  A large number of these consumers, whether out of fear, denial, or basic neglect, never even answer the complaint against them, and never appear in court.  The creditors then seek default judgments against these consumers, and because the consumers either never show up or, not being attorneys themselves, do not know that the statute of limitations has expired, never assert a statute of limitations defense.  These creditors are now enforcing default judgments obtained even after the statute of limitations has expired, against consumers who don’t know that the judgment against them isn’t even valid.  These consumers are having their wages garnished and their assets seized, and are entering into settlement agreements for debts that can’t properly be enforced against them.

I had a client call me in a panic last week because her bank account was being frozen.  Besides a small amount of money from her wages, her entire account consists of FEMA assistance she received following Superstorm Sandy.  First of all, FEMA money is generally exempt from levy.  Second of all, she never even knew that there were judgments against her until she needed to move after Sandy and potential landlords turned her down for apartments due to her credit.  When I looked into the situation further, it was clear that, not only had the creditor not served her with summonses and complaints, meaning that the court lacked jurisdiction to enter judgments against her in the first place, but the judgments were also time-barred.  She last made a payment in 2005, and the lawsuits were not brought until 2009.  The credit card company in question is incorporated in Delaware, located in Virginia, and both Delaware and Virginia have three-year statutes of limitations.  Opposing counsel has called offering to settle for a relatively small percentage of the total debt because, as he says, my client is a Sandy victim and his client is, of course, sympathetic to her situation.  However, when I calmly suggested that I could not advise my client to settle when the default judgments against her were improper, the gloves came off.

The situation has been so dire in New York City that, in June of 2010, the Civil Court of the City of New York acknowledged that these debt-collection firms had sought, and been granted, numerous time-barred default judgments against consumers.  In response, the Civil Courts in all five boroughs now require debt collectors seeking default judgments to submit a sworn affidavit setting forth:  (1) where the claim accrued; (2) the statute of limitations period for the state in which the claim accrued; and (3) the debt collector’s reasonable belief that the applicable statute of limitations has not expired.

It is important for New York consumers facing debt collection lawsuits to be well informed, and to present the best possible defenses to creditors’ claims.  Plaintiffs in these actions routinely file lawsuits when the statute of limitations has expired, and frequently these firms (or their chosen process servers) do not serve defendants with summonses and complaints as required by New York law. So many consumers would be relieved to learn that a competent attorney can, in a relatively short amount of time, at minimal cost to the consumer, get such a complaint dismissed or, if there is already a default judgment against the consumer, get such judgment vacated.

UPDATE:  I had asked the law firm representing the credit card company suing my client to fax me copies of the summonses, complaints, judgments, and proof of service of all of those things.  Strangely, my fax machine remained idle all day.  This morning, the law firm called me, and the same attorney who swore up and down that I would lose, that I didn’t understand the law, wanted to discontinue the actions voluntarily, by stipulation, with prejudice, and to have the judgments vacated, releasing my client from any further obligation on these debts.

When I called my client, she rightfully asked “What’s in it for them?”  She was suspicious, as it all seemed too good to be true.  What’s in it for them, though, is not paying an attorney to go to court to argue for default judgments obtained without proper service, and after the statute of limitations had already run.  Also, it reduces the likelihood that their firm’s reputation, and that of their client, will take any further hit because of these improper judgments.  It allows them to save face, while still conceding that they don’t have a legal leg to stand on.  Either way, victory for my client, and for consumers everywhere who not only fight back, but do so with the best possible legal strategies!

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Responsible Parenting in the Age of Social Media: In the Matter of Melody M. v. Robert M., Family Court of St. Lawrence County

There is a growing controversy about whether, when, and to what extent parents should post information about their children on social media sites. The controversy centers around concerns that children, who cannot yet consent to having this information shared within the social media universe, are suffering an irreparable invasion of their privacy from infancy and, in many cases, even in utero.

We all know those parents. Some of us are those parents. It’s so easy, especially with our first children, to get carried away with each new milestone, and to want to share our joy with our friends and family. Does it invade our children’s privacy? Maybe. But it’s mostly innocent fun, and the easiest way to share our children’s firsts with people who love them but don’t get to see them every day. There are ways to safeguard our children’s privacy and safety even while disseminating information about them on social media. In other words, sharing photos of your baby’s first steps, first birthday, and first day of kindergarten with your Facebook friends, with proper privacy limits in place, is likely evidence that you are a proud, loving, responsible parent, and not evidence of poor judgment.

On the other hand, parents do need to realize that people are watching. Your closest friends and family are surely watching, but so are more distant friends, friends of friends, and some people who are in such a distant friend-type orbit that you know little more about them than their names, and that you maybe met them years ago at a party, or played on a little league team with them 20 or so years ago. Common sense would dictate that pictures of our children should only be visible to those we actually know, and that pictures of a very personal nature should be visible only to very close friends and family, if at all.

Besides issues of our children’s privacy, which can be a very confusing grey area at times, it appears that some parents need to be reminded not to insult and demean their children using social media, lest it be used as evidence against them in a custody determination. Once upon a time, furnishing evidence of verbal or emotional abuse in a custody proceeding was fairly difficult. Children, especially very young ones, are not always great witnesses, and are very susceptible to suggestion from one or both parents, other family members, school professionals, social workers, attorneys, and the court itself. There are myriad evidentiary issues with testifying to what someone else may have said to a child. If you want to maintain custody of your children in the age of social media, however, it is best not to disparage them to your Facebook friends. It is definitely best, when the judge asks you why you referred to one of your children as an “a–hole” on Facebook, not to respond, “Because he is.”

All of us who use social media have a permanent electronic fingerprint. Some of us, after a bad day, like to vent. Most of us, if we insulted our children to the extent of the mother in Melody M. v. Robert M., a recent New York family court case, would make some attempt to delete the entry, apologize publicly, or at the very least show some remorse. Melody M. did none of those things, and her lack of “insight” and remorse, among other things, led to a loss of custody and an order restraining her from mentioning her children on Facebook.

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Lopez v. Reyes: A Shifting View of the Definition of Family in NYC Housing Court

New York, as a political entity, has long held more traditional views on what constitutes a “family” than, perhaps, the majority of individual New Yorkers have.  New York only recently adopted “no-fault divorce,” preferring for decades that couples who wished to divorce jump through hoops to fit their marital discord into one of several restrictive boxes, such as adultery or abuse.

The tide, however, is starting to turn, and nowhere is that more apparent than in the Housing Court.  In a still somewhat surprising move, in the case Lopez v. Reyes, Bronx Housing Court Judge Brenda Spears dismissed a building superintendent’s petition to evict his longterm live-in girlfriend from his apartment on the basis that they were not married, and did not have any children together.  According to Judge Spears’s decision, which cited the earlier decision Braschi v. Stahl, “a narrow definition of of ‘family,’ relating only to the nuclear family with children is inapplicable to modern society.”  New York law has long recognized that marriage is, first and foremost, an “economic partnership,” and Judge Spears recognized that the couple had lived together, in a marital-like economic partnership, for more than 25 years.  Accordingly, Judge Spears ruled that only the Family Court or Supreme Court had jurisdiction to determine issues surrounding the dissolution of their marital-type relationship.

It will be interesting to see where this leads.  The narrow definition of family has always played a large role in succession rights for the city’s coveted rent-control apartments.  Could this judicial trend lead to a relaxing of the restrictions for rent-control apartments?  My prediction:  not without a huge fight.

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Current Landlord-Tenant Issues in the Wake of Hurricane Sandy

In the past couple of weeks, I have been assisting a number of New York City residents affected by Hurricane Sandy with landlord-tenant issues.  So many NYC residents continue to suffer in Sandy’s aftermath.  While we all like to imagine that the City is pulling together and helping each other – and many are – there are still others who are using this tragedy for personal gain.

My first post-Hurricane clients, a couple from Sheepshead Bay, Brooklyn, called in a panic because their management company informed them that they needed to move out immediately after the hurricane hit.  My clients did not dispute that their apartment was completely destroyed.  They had moved in temporarily with friends, and had found a new, permanent residence.  Unfortunately, their new apartment would not be ready for move-in for three days, and they could not retrieve what was left of their belongings from their destroyed home in the meantime because they lacked storage.  Scared, homeless, living without heat or electricity, having lost almost all of their worldly possessions – and their management company was applying such pressure on them to move their possessions out immediately that they were forced to waste precious time seeking legal assistance, rather than attending to their most basic needs.

An even more egregious case came to me from a young professional man in Red Hook, Brooklyn.  My client was facing a similar situation – a landlord applying inordinate pressure to vacate an apartment following the hurricane – only this time, the apartment was not even destroyed.  It had sustained very minor damage, of the sort that any competent handy man could repair in a day or two of work while the tenant continued to live in the apartment.  However, the landlord, upon receiving a large payment from FEMA and/or insurance, decided to gut renovate the building so that the units could be re-rented at higher monthly rates.

My advice to both sets of clients was largely the same:  STAY.  Landlords cannot evict tenants without a court order, and that takes considerable time.  Given that many of the city courts remained closed for an extended period of time post-hurricane, it was highly unlikely that the management company for my Sheepshead Bay clients could have gotten an eviction order during the measly three days that my clients sought to remain in possession of their destroyed apartment.  The management company is not entitled to lock the tenants out or remove their property from the premises – only a sheriff or marshal can physically evict a tenant, and only with a court order.  The clients cannot be deemed to have abandoned their interest in the apartment, given the circumstances and short duration of their absence.  For my Red Hook client, I informed him that he has a lease, and as long as he provides his landlord access to the apartment to make appropriate repairs, he is entitled to remain in possession of his apartment.

Unfortunately, however, there is the law, and there is the practical reality.  The management company in Sheepshead Bay is not entitled, even under these emergency circumstances, to engage in what we call “self-help” eviction.  It can’t forcibly remove my clients or their property from the premises.  Does that mean it won’t happen?  Unfortunately, no.  And, with the courts closed or operating at less-than-full capacity, and the NYPD attending to much more pressing matters, there is little infrastructure available to enforce even these most basic tenant rights.  My Red Hook tenant intends to stay in his home, and he has every right to.  But I was forced to counsel him as to the practical reality:  Yes, you can stay, as long as you pay your rent and allow your landlord access to make repairs.  But don’t expect a renewal lease, so eventually you will need to move.  And, between now and then, fully expect your landlord to make your life as miserable as possible because you didn’t cave to his demands.  Your landlord needs to repair the heating mechanism and have power restored promptly.  But if your fellow tenants have moved out and you’re the last tenant standing, don’t expect your comfort to be a priority for the landlord, even if it is his legal obligation to ensure that your living situation complies with the warranty of habitability.

These issues are frightfully common right now, particularly in the outer boroughs.  If you or someone you know is on the receiving end of these or similar tactics, don’t hesitate to contact this office, or one of the many legal assistance helplines established to assist with Hurricane Sandy’s aftermath.

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The Aftermath of Hurricane Sandy: Figuring Out Your Next Steps, and We’re Here to Help!

As the flood waters start to recede here in NYC, it’s useful to think about all of the different ways the storm may have had legal ramifications for you and your family.  One of the major considerations is housing: if your home was damaged, or if you are without required services for an extended period of time, you may have a claim against your landlord, utility provider or insurance company.  Likewise, if you had possessions damaged during the storm, you may need to make an insurance claim to protect or replace your interest.  In natural disasters such as this, often insurance companies, landlords and other responsible parties resist paying what you may be entitled to under your lease, policy or other agreement, because of the sheer number and value of claims.

Other areas of concern are in the employment and educational spheres.  Are you being penalized for your inability to work during the extended power outages and transportation suspensions?  Are you unable to work due to child care obligations?  Are you receiving less of an education than you bargained for because of school closures or delays, or the cancelation of important programs you were counting on?

There are many ways that individuals and businesses can be impacted by the storm.  Most of us would be smart to take stock of our homes, jobs and property to see where we might need to fight a little harder to get what we’re entitled to receive.  Also, for those who braved the storm without basic estate documents, including guardianship designations, living wills, power of attorney forms and sufficient life insurance planning, now would be a good time to think about how you would need your property and rights to be allocated should, next time, the truly unthinkable happen.

If you are having any issues getting back on your feet, and feel you could benefit from a legal advocate in your corner, don’t hesitate to contact us.  We are experienced in dealing with landlords, insurance companies and creditors, and we can offer great advice to help you be prepared for any future disasters.

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