Andrew M. Doktofsky's Answers

Can anybody write a subpoena duces tecum or do you need and lawer or a judges signature?

In New York, an attorney can issue a subpoena. However, if you are representing yourself in the action, you must have a judge or the court clerk sign the subpoena. However, keep in mind that subpoenas are issued to non-parties only. If you want to obtain documents from the defendant, you can only do so through a discovery demand, specifically a Notice for Discovery and Inspection. The sheriff generally does not serve civil subpoenas. You generally must hire a process server to do so. However,...

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Father-in-law signed deed with life estate with daughter as remainderman. She died. Her wife now wants the house. Can he strike

If the deed was fraudulently obtained, then your father in law would have to bring an action to set aside the deed. This would be done in the Supreme Court. He will have to be able to prove that he did not intend to sign a deed. The father in law's age and health at the time of the transfer will be important factors. He should also file what is known as a "Lis Pendens" with the county clerk to prevent the sale of the property. If the transfer was legitimate, then the remainder interest in...

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How soon after a death is a will read

In New York State, wills are not “read” as you may have seen on TV. In New York, when the decedent left a will, a process called probate must be followed. The purpose of probate is to have the Surrogate’s Court deem the will to be valid, i.e. that it is the actual last will and testament of the decedent. The will must have been properly executed and witnessed according to New York law. For a will to be admitted to probate, the usual process is for the person nominated as the Executor in the...

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Is there a maximum or a standard a judge can award a defendant for costs associated with small claims court in New York State?

Attorney's fees in small claims court, as in other courts in New York State, can be awarded if the action is based on a contract, lease, or promissory note that provides for an award of attorney's fees to the successful party, or if a statute provides for the payment of attorney's fees. Otherwise, attorney's fees cannot be awarded to a party. The amount awarded for damages, plus attorney's fees, cannot total more than the small claims jurisdictional limit (generally $5,000). Costs are not...

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Chap 7-NYS-Reaffirmation confusion-do I reaffirm car loan if the creditor sent me the affirm. agreement to sign after I filed?

Whether or not a debtor should sign a reaffirmation agreement in a Chapter 7 bankruptcy is an important decision. As the previous answers have mentioned, if you do not sign, it is possible that the lender will repossess the car, even if you are current in your payments. However, signing the reaffirmation agreement obligates you to repay the loan. That is, if you do not sign the agreement, your obligation to pay the loan is discharged in your bankruptcy. This is very important if later on you...

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Can a property deeded to sons through a revocable trust be sold if one of the sons files bankruptcy?

To add to the previous answers, you mention that the house was transferred by the son who may file to his daughter six months ago. It is not clear from your question what exactly happened. However, transfers of property for less than fair value, within the six years preceding the bankruptcy filing, can be set aside by a Chapter 7 trustee. That is, the trustee can recover the property for the benefit of the debtor's creditors. It is imperative that someone in this situation, who is contemplating...

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How does chapter 13 work

Chapter 13 provides debtors with the ability to repay some, or all of, their debts through a court supervised repayment plan. A Chapter 13 plan will usually provide for monthly payments over a period of between three and five years. Chapter 13 is only available to debtors with regular income. How much unsecured debt a debtor will repay depends mainly on two factors. The first factor is the debtor’s income. If the debtor’s income is above the median income for the debtor’s family size, for the...

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My husband was named in his father's will to inherit the house we reside in for the last 11 years. His brother and sister were

The first question is whether the deed was actually executed while your husband’s father was alive. If yes, then, as the previous answer advised, you may have a claim against the sister for violating her fiduciary duty as the father’s attorney in fact. Certainly, it is suspicious that the deed was executed on the same day that the father died. If the deed was executed after his death, then it would not be a valid transfer as the power of attorney would no longer have been effective. If the...

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My father signed over his home to my sister she owns a home and she is filing BK will my dad lose his home in the process?

If your sister files for Chapter 7 bankruptcy, her interest in your father’s home will become part of her bankruptcy estate and may be sold by the bankruptcy trustee. Because it is not your sister’s primary residence, the New York homestead exemption cannot be used to protect the property. If your sister only owns a portion of the property, then a bankruptcy trustee may still seek court permission to sell the entire property, with the proceeds from your sister’s share to be used to pay her...

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Can I get my financially irresponsible husband off the deed without taking him off the mortgage?

The terms of your mortgage most likely prohibit you from doing so without the permission of the mortgage holder. However, a more important reason why you may not want to do so has to do with bankruptcy. If your husband is in debt, and may be considering a bankruptcy filing, transferring his interest in the property to you could have severe consequences. That is because a bankruptcy trustee has the power to recover asset transfers made within the six years preceding a bankruptcy filing. So if...

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