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Michael J. Catalfimo

Michael Catalfimo’s Answers

60 total

  • I served my divorce papers last August to my wife in Ireland and never filed affidavit of service in NY. Is it too late?

    I served my wife her papers and have been waiting for her to sign the affidavit of defendant. Since she hasn't responded, I want to go ahead to file the affidavit of service. Internet sites seem to indicate that I had to file it within 120 days of...

    Michael’s Answer

    You must serve the process upon your wife within 120 days of the commencement of the divorce action, but you do NOT need to file the affidavit of service within 120 days. Having said that, please note that if the method of service which was used to serve your wife was "leave and mail" or "nail and mail", then her time to answer or respond to the process will not begin to run until 10 days after the affidavit of service is filed with the court clerk. Please also note that the validity of the service upon your wife could be called into question by the court, given the fact that she wife was in a foreign country at the time she was served. Serving process upon a defendant in a New York divorce action outside the State of New York can affect the court's jurisdiction to determine property and child related issues; and serving process in a foreign country may require compliance with special rules regarding how the process is served.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • What can i do if my husband takes my car if i am on the title and we are still married?

    me and my husband were undergoing a divorce but it got held off because of the cost. we are legally still married although we live in different homes. what can i do if he takes my car and it is registered to me and the title is under my name but ...

    Michael’s Answer

    If you are unable or unwilling to go to court, there is probably little you can do to prevent your husband from using your car. Technically, you could file a criminal complaint against your husband and request that he be prosecuted for the unauthorized use of a motor vehicle (See Section 165.05 of the New York Penal Law, which provides that "A person is guilty of unauthorized use of a vehicle in the third degree when...knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle."). As a practical matter, however, most police agencies and district attorneys are reluctant to use the criminal law to resolve what is essentially a civil property dispute in a divorce action. I would not be overly optimistic, therefore, that this approach would work. Your best bet is to retain an attorney to address the issue in the context of a divorce action.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • Am I liable for my wifes credit card debt in NY if they are soley in her name

    My wife and I split up and moved into different places 10 months ago. I left with 15k in personal credit card debt and she left with 20k. My cc debt was accumulated while we were together but not yet married and about half of hers was accumulated ...

    Michael’s Answer

    The extent of your responsibility for credit card debt your wife incurred during your marriage depends, primarily, upon the reason the debt was incurred. Charges relating to the purchase of goods or services which were "marital" in nature (e.g., purchase of food, clothing, travel and entertainment for both of you while you lived together, or payment of other joint living expenses such as home mortgage, utilities, maintenance or repairs), will generally be the shared responsibility of the parties regardless of who is legally obligated on the card. Charges relating to the purchase of goods or services which were "personal" in nature, on the other hand (e.g., purchases made after your physically separated which did not relate to a joint living expense), will generally be the sole responsibility of the party who incurred them.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • When should a husband start paying support/maintenance in New York when he's moved out and they're pending a divorce?

    Husband moved out 4 months ago, and has closed all credit cards and checking account leaving mother with a 10 and 13-year old w/out access to money even for gas. Her lawyer is waiting for him to file for divorce. In the meantime, she can only wo...

    Michael’s Answer

    Under New York law, awards of child support and maintenance are made retroactive to the date they are first requested in a legal proceeding between the parties, and not to the date of the parties' physical separation. Accordingly, a party seeking child support or maintenance should generally commence a legal proceeding to recover these benefits as soon after separation as possible.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • HOW DO I FIND OUT WHO OWNS AN ABANDONED DOUBLE WIDE ON MY PROPERTY? HOW DO I GET THE TITLE FOR IT?

    THEY WERE PAYING 250 FOR LOT FEE. A COMPANY BOUGHT THE DW BUT WE DON'T KNOW WHO. I JUST NEED TO KNOW HOW TO GO ABOUT CONTACTING THE OWNERS. I NEED TO KNOW IF IT CAN BE BOUGHT BECAUSE IT HAS BEEN ON MY PROPERTY FOR OVER A YEAR NOW AND NOBODY HAS DO...

    Michael’s Answer

    You might try one or more of the following:

    1. I assume that you have tried to contact your former tenants to see if they have any information that would assist you to identify the new owner of the home If not, I suggest that you start by doing so. If you're not sure where the tenants went, try filing a postal search request with the Post Office to see if they left a forwarding address.

    2. Obtain the year, make and serial number of the home (look for the serial number label near exterior doors or inside built-in cabinets) and then search the records of the Department of Motor Vehicles to see who holds the Certificate of Title. Try contacting that person or entity.

    3. Search the index of civil actions maintained by the court clerk in your county against the name of your former tenants. A lawsuit may have been brought against them to recover the possession of the home and, if so, the plaintiff in that lawsuit probably became the owner of the home. If no actions are filed against the names of your former tenants, try searching against the name of the owner which appears on the DMV Certificate of Title for the home. That may lead you to a lawsuit involving the home.

    4. Try searching against your own name in the Uniform Commercial Code index of the real property records of the County Clerk's Office in the County where the home is located. If a lender treated the home as real property for lien perfection purposes, it would have filed a Financing Statement in the Uniform Commercial Code records.

    5. Consider hiring a private investigator to assist you in locating the owner.

    If you are still unable to identify the current owner of the home after trying the above, I recommend that you consult a North Carolina attorney to review other options. It may be possible to commence a lawsuit against the unknown owner--who would have to be served by publication as a "John Doe"--to secure money damages for continuing trespass, or other relief.

    Good luck!

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • Promissory Note - I have been trying to find out who owns my 2005 promissory note for over a year now. How can I find out?

    MERS is on the mortgage but refers me to the servicer, the lender never responded to my letters, and the servicer tells me MERS owns the note. QWR's from July 2008 till Dec 2008, then the servicer filed foreclosure and then MERS assigned the note ...

    Michael’s Answer

    I am not licensed to practice in the State of Illinois, so I am unfamiliar with that state's specific rules of pleading and procedure in the area of mortgage foreclosure actions. Nor does your question provide much detail about the status or procedural posture of the pending foreclosure action. I can tell you, however, that one effective way to compel disclosure of the loan owner's identity is to require the foreclosing plaintiff to prove that they have legal standing to commence and prosecute the foreclosure action.

    In most states, legal standing to foreclose a mortgage is obtained either because the plaintiff is: a) the legal owner and holder of the note and mortgage (the "Holder"); or b) the authorized servicing agent or attorney-in-fact of the Holder. In your case, you state that the servicer filed the foreclosure action. The rights of the servicer to do this are conferred by a written agreement made between the servicer, the Holder and one or more other parties; and this agreement is usually referred to as a Servicing Agreement or a Pooling and Servicing Agreement (the "Servicing Agreement"). When a servicer's legal standing to commence a foreclosure action is properly challenged by a foreclosure defendant, most courts will require the plaintiff/servicer to produce the Servicing Agreement in order to demonstrate that it does, in fact, have the legal authority to act on behalf of the Holder. Once the Servicing Agreement is produced, it is usually pretty easy to determine who the Holder of the loan is.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • I'm sending a Produce the Note to lender. My question concerns what the "orig note" is.

    We assumed this house in '82...then refi'd it SEVERAL times and most recently a couple years ago. When I need to ask for the lender to produce the ORIG note... is that the note with the LAST refi, or is that the note when we assumed the mortgage?...

    Michael’s Answer

    When a mortgage is refinanced, some or all of the new loan funds are used to pay off the "old" loan. The old mortgage is then discharged and the new mortgage takes its place as security for the repayment of the new refinance loan. So, you are correct in assuming that it is the most recent lender (last refi, as you put it) to whom your request should be addressed.

    Having said that, please note that in today's residential mortgage loan market it is not uncommon for mortgage loans to be purchased and sold several times after they are made; and not all of these subsequent loan transfers are recorded in the mortgage records of the County Clerk's Office where people can see them (the "Unrecorded Transfers"). Residential mortgage loans are also frequently bundled together into large pools or groups, and then transferred to a Trust as collateral for the issuance of securities which are sold on Wall Street to investors all over the world ("Mortgage Securitization"). When this happens, a large bank is typically employed to serve as the Trustee of the Trust and hold the ownership of the loans for the benefit of the investor owners. Finally, many mortgage loan owners--especially the Trustees of Securitized mortgage loan trusts--employ specialized loan servicing companies to service their mortgage loans for them("Servicing Rights Transfers").

    The use of Unrecorded Transfers, Mortgage Securitization and Servicing Rights Transfers can make it very difficult for the typical borrower to know who actually owns his or her loan at any given time. If you have any doubt as to who owns your mortgage loan, you should contact the company who collects your mortgage payments and ask who the owner of your loan is. If that proves unsuccessful, you are well advised to consult an experienced foreclosure attorney to obtain assistance, as it is very difficult in today's market for an ordinary home loan borrower to secure accurate information without professional assistance of some kind.

    Good luck.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • Is the "Produce the note" stratagey an answer to a summons and complaint in New York?

    I have to answer a summons and complaint. I wanted to use the the "produce the note" strategy to get me some more time. Is filling with the court to produce the note and copying that filling to the plaintiff answering the complaint? How should ...

    Michael’s Answer

    A proper "Answer" to the "Complaint" in a New York foreclosure action should comply with section 3018 of the NY Civil Practice Law and Rules, which provides that: "A party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial. All other statements of a pleadings are deemed admitted..."

    If you file an "answer" with the Court which only requests that the plaintiff produce a copy of the note and mortgage, you will have admitted the truth of any allegations in the complaint that you have not responded to. Without knowing the circumstances of your particular foreclosure action, I can't say whether that would, or would not, be an accurate or wise way for you to respond to the complaint. You should consult with an attorney experienced in the area of mortgage foreclosure to determine how best to respond to the complaint.

    The "produce the note" approach to defending a mortgage foreclosure action has more or less chance of succeeding depending on the type of mortgage being foreclosed, and the preferences of the Judge who is handling the foreclosure action. The strategy can be productive in some situations; but it can be equally counterproductive in others. Only an attorney who is experienced in foreclosure practice can accurately determine whether the use of such a strategy makes sense for you.

    In selecting a strategy for responding to a mortgage foreclosure action, it is important to identify the ultimate goal which you hope to achieve. If, for example, the goal is to secure a loan extension, modification or reinstatement agreement, it is generally not advisable to employ delaying or stalling tactics, or to engage in other conduct which serves to cause the mortgage holder or servicer to suffer increased costs or aggravation in the foreclosure process. If, on the other hand, the mortgagor has no ability or interest in returning the loan to "performing" status and simply hopes to gain as much rent free occupancy as possible before the property is lost to foreclosure, then a different kind of defensive strategy may be suggested.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • I am renting a house that was under foreclosure,i did not now that when I rented it .

    a house that i rented on 8/08 ,was just bought at a foreclosure sale on 7/09, the new owner came and told me that I have until the end of the month to leave ,I dont know if I could find something so quickly,what legal options doI have ,I think th...

    Michael’s Answer

    A federal law called the "Protecting Tenants At Foreclosure Act of 2009" may afford you some protection. Because of the way this law is drafted, there is currently a great deal of uncertainty regarding what leases the law will apply to, and how it will apply to them. You should consult an experienced mortgage foreclosure attorney as soon as possible, to determine whether your lease is covered under the law.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • What can I do to stop the foreclosure after I've been served? I want to keep my house!! Help please!!!!

    My mother and I own the house. She is a teacher asst and I work f/t. She does not work 3 mos while school is out and that puts a hardship on us. We want to keep our house...but are 6 months behind in payments. We have contacted an attorney 2 mo...

    Michael’s Answer

    You say you contacted an attorney to help you with a loan modification, but you don't indicate what he or she has done on your behalf. The New York State Banking Department maintains a list of Foreclosure Prevention Counselors who are knowledgeable about loan modification programs now in effect. You should review this list, which can be accessed online at http://nysdhcr.gov/Programs/ForeclosurePrevention/CounselListing.htm#a56, and contact the counselor(s) nearest to you as soon as possible. While you are doing that, it is important that you serve an answer to the foreclosure complaint upon the plaintiff's attorneys and file a copy with the Court. This answer should state any defenses you feel you may have to the foreclosure action and indicate that you have applied for, or would like to apply for, a modification of your loan.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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