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Michael J. Catalfimo

Michael Catalfimo’s Answers

60 total


  • Sale of nys property is scheduled for 7-2009 how long after eviction notice do we have to vacate property?

    Foreclosure sale scheduled for 7-09

    Michael’s Answer

    You don't indicate the nature of your interest in the property (e.g., owner, tenant, guest, etc.), and this can make a difference in determining what occupancy rights you may have following the foreclosure sale.

    Assuming that you are an owner, the foreclosure purchaser will likely arrange for a 10 day Notice to Quit to be served upon you as soon after the sale as is possible. If you fail to leave before the expiration of the 10 day notice period, the purchaser will then either file a motion with the foreclosure court, or bring a new proceeding in a lower court, to obtain an order directing the Sheriff to put you out of possession of the house. It can take anywhere from a few weeks to several months for this motion or proceeding to be filed or commenced, and for the order to be granted. Once an order is issued, it then usually takes at least 2-4 more weeks for the Sheriff to schedule and complete the eviction. Time lines vary widely, depending on the location of the mortgaged premises and the volume of foreclosure proceedings pending in the court.

    If you are a tenant, rather than an owner, a recently enacted federal law may serve to alter the time periods stated above. This law, which is known as the “Helping Families Save Their Homes Act of 2009,” was signed by President Obama on May 20, 2009 as Public Law No. 111-22, and serves to extend a tenant's right of occupancy in a foreclosed home under certain circumstances. You can find more information about it by searching the internet.

    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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  • My landlord is going into foreclosure and isn't give me much information. Should I continue to pay him?

    Should I write him a letter stating that I am holding his rent until the situation is resolved?

    Michael’s Answer

    Your rights and responsibilities with respect to the payment of rent are established, initially, by the terms of the lease agreement which you signed. Such an agreement typically obligates the landlord to provide habitable premises to the tenant and, in return, obligates the tenant to pay rent to the landlord for those premises. The standard residential lease agreement does not, typically, condition the tenant's duty to pay rent upon the landlord's timely payment of any mortgages which are owed on the premises.

    Assuming that your lease agreement does not condition or limit your duty to pay rent, you will breach your contract by withholding the rent due to the threat of a foreclosure proceeding. That will give the landlord the right to bring eviction proceedings against you for non-payment of rent, and may obligate you for the payment of the landlord's legal fees and costs (if the lease authorizes this).

    If in fact the leased premises do become the subject of a foreclosure proceeding, please note that a recently enacted federal law may offer you some protection in the event that you are still in possession of the premises at the time of the foreclosure sale. The law, which is known as the “Helping Families Save Their Homes Act of 2009,” was signed by President Obama on May 20, 2009 as Public Law No. 111-22. You can find more information about it by searching the internet.

    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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  • The house we are renting is going into foreclosure. We have six months left on the lease. Should I continue to pay rent?

    The house we are renting is in preforeclosure. The owner has not paid on the mortgage since January 2009. Should I continue to pay rent to her? The lease says that if I don't pay rent, she can sue us for it, and will make us pay for all the legal ...

    Michael’s Answer

    Your rights and responsibilities with respect to the payment of rent are established, initially, by the terms of the lease agreement which you signed. Such an agreement typically obligates the landlord to provide habitable premises to the tenant and, in return, obligates the tenant to pay rent to the landlord for those premises. The standard residential lease agreement does not, typically, condition the tenant's duty to pay rent upon the landlord's timely payment of any mortgages which are owed on the premises.

    Assuming that your lease agreement does not condition or limit your duty to pay rent, you will breach your contract by withholding the rent due to the threat of a foreclosure proceeding. That will give the landlord the right to bring eviction proceedings against you for non-payment of rent, and may obligate you for the payment of the landlord's legal fees and costs (if the lease authorizes this).

    If in fact the leased premises do become the subject of a foreclosure proceeding, please note that a recently enacted federal law may offer you some protection in the event that you are still in possession of the premises at the time of the foreclosure sale. The law, which is known as the “Helping Families Save Their Homes Act of 2009,” was signed by President Obama on May 20, 2009 as Public Law No. 111-22. You can find more information about it by searching the internet.

    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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  • Can I foreclose on property if I hold the 2nd mortgage & am not being paid?

    Can I foreclose on property if I hold a 2nd mortgage on it & they are only paying the 1st one?

    Michael’s Answer

    Yes, although the sale of the property will be subject the continuing lien rights of the first mortgage holder and this may deter third party bidding at the sale. Be aware, also, that the commencement of your action may serve to trigger the default provisions of the first mortgage, even if the payments on that mortgage are current.

    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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  • If I withdraw my petition for divorce, can I file in a different county at a later date?

    If I end up filing for divorce again, can I file in the county where I now live? We are trying mediation after two years into this.

    Michael’s Answer

    Whether a claim for divorce can be re-filed depends, first, on whether the current lawsuit is dismissed WITH prejudice, or WITHOUT prejudice. If it is dismissed WITH prejudice, then it cannot be filed again. If it is dismissed WITHOUT prejudice, then it CAN be filed again, provided that the statute of limitations for the claim has not expired when the second lawsuit is commenced.

    The following example will help to illustrate these concepts: Assume that the current lawsuit seeks a divorce on the grounds of cruel and inhuman treatment, based on conduct which occurred 4 years ago and that the statute of limitations for cruel and inhuman treatment is 5 years. If the current lawsuit is dismissed WITH prejudice, it cannot ever be brought again. If it is dismissed WITHOUT prejudice, however, it can be brought again in the future; but if the second suit is filed more than 1 year from now on the basis of the same misconduct that the first suit was based on, it could be dismissed if the defendant asserts the statute of limitations as a defense to the 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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  • How much notice to i need to give a tenent and do they have to be present, to show an occipied apartment

    my tenent just gave me a verbal 30 day notice and i need to rent apt. asap. i plan on showing the apartment while she is still occupying it. how much notice do i need to give her and does she have to be home?

    Michael’s Answer

    Generally speaking, a landlord in New York may NOT enter the leased premises during the term of the lease without the Tenant's consent, unless the right of entry is reserved to the Landlord in a written lease for the premises. If you have a written lease, you should consult it to determine if it gives you the right to enter the leased premises for the purpose of showing them to a prospective tenant. If it does, then you must comply with the terms of the lease with respect to any notice the Tenant may be entitled to receive of you intent to exercise the right, the time of day you may enter, etc. If there is no written agreement governing your lease of the premises, then you must secure the Tenant's consent before entering the premises.

    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 close my husband's estate in New York?

    He died dec.2006 .There was no will. In dec. 2008 there was a settlement between me and his brother. I still remain as executer administrater of the estate and I 'd like to close it. I now I have to do the taxes for the last two years but I don't ...

    Michael’s Answer

    If an estate proceeding was opened for your husband after his death--which would have been done by the filing of a petition for Letters of Administration in the Surrogate's Court of the county he resided at the time of his death--this proceeding can be closed either by your filing of: a) a petition for the judicial settlement of your account as Administrator; or b) an agreement (often referred to as an instrument in settlement) signed by you and your husband's other heirs at law, which acknowledges that each party is satisfied with what they have received from the estate and releases you from further liability as Administrator of the estate. If no proceeding has been opened in the Surrogate's Court, you will first have to start such a proceeding and become appointed to represent the estate, before you can then proceed to file tax returns and settle the estate.

    I recommend that you go to the Surrogate's Court, ask to meet with the Clerk of the Court and explain what you are trying to accomplish. Surrogate's Court Clerks are not permitted to give legal advice. They are, however, often able to offer practical advice which will be of assistance to you in deciding what to do; and they can sometimes provide contact information for local bar associations or other legal services agencies who might be of assistance to you if you are unable to locate or afford an attorney.

    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 live with parents ages 92 & 95. 95 yearold has advanced alzheimer's. I have been here two years. can I leave?

    I believe Dad should be in a nursing home. My sister has power of attorney and health care proxy. She says no. She does not help with care, and withholds funds for outside help. I have been unable to work for two years and am now impoverished.

    Michael’s Answer

    You cannot be legally compelled to act as your parents' caregiver. Having voluntarily undertaken to perform this job, however, you should not discontinue your services without first exercising reasonable care to insure that your parents do not suffer harm as the result of your departure from their home. If your sister will not assist you in securing a suitable substitute for your services, you might consider contacting the Adult Protective Services division of the Department of Social Services in the county where your parents live, to request their advice and assistance.

    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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  • Divorce, pension, separation agreements, baby on the way...

    My fiancee is separated from his wife almost 3 years. A few months ago he applied for a separation agreement and she signed. Now she wants more. Can she get more after the signature? She is trying to get half of his pension too. The thing is that...

    Michael’s Answer

    A Separation Agreement is usually intended to settle and resolve ALL property rights arising out of the marriage. If such an agreement is properly drafted and signed, the parties to the agreement will not be permitted to alter or change the property settlement terms of the agreement unless they can prove either that: a) the agreement was the product of fraud, undue influence or overreaching; or b) the agreement is so unfair in its terms that it would be against public policy for the courts to enforce it. These defenses to the enforceability of a separation agreement are usually very difficult to prove.

    Having said that, you should know that not all Separation Agreements are well drafted; and that some of them are limited--either by design or by error--in the issues that they deal with. As a result, an accurate answer to your question cannot be given unless the terms of your fiancee's Agreement are reviewed.

    As far as your fiancee's pension is concerned, he should consult with the person or company who administers his pension plan--known as the Plan Administrator--to determine what rights, if any, his wife currently has to his interest in the plan (the answer to this depends on a number of factors which are too numerous to discuss in the space available for this answer). If she has an interest in the plan, it will need to be terminated by either a court order, or a waiver filed with the Plan Administrator on a form satisfactory to the Plan Administrator. Until it is terminated, you cannot obtain an interest in your fiancee's pension which is superior to his wife's.

    Converting a legal separation into a divorce in New York requires, among other things, that the separation have continued for at least one year. To secure a New York divorce sooner than that, your fiancee would have to claim, and be able to prove, that his wife was guilty of cruel and inhuman treatment, adultery or abandonment. If you are correct that there was no abandonment or adultery, the only other ground for divorce would be cruel and inhuman treatment. To determine if that ground might exist, your fiancee should consult a competent divorce attorney.

    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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  • Can I have my fiances aunt served with an order of protection in family court.

    I live in NY and my fiances uncle has been convicted and sentenced for raping me. The day after his sentencing his sister, my fiances aunt, sent email to my myspace inbox. Addressed to me, calling me a liar and threatening that it is not over yet...

    Michael’s Answer

    Family Offense proceedings in New York Family Court are governed by the provisions of Article 8 of the Family Court Act. Section 812 of the Family Court Act indicates the nature of the relationship which must exist between a complainant and a respondent in order for the Court to have jurisdiction to hear and determine a petition alleging a Family Offense.

    Last year, the class of "family relationships" subject to Family Offense jurisdiction was expanded by the New York Legislature to include "...persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time." It is possible, therefore, that the Family Court may have jurisdiction to hear your matter.

    The 2008 amendment to Family Court Act Section 812 provides the following criteria for the Family Court to consider in determining whether or not a relationship meets the definition of "intimate relationship": "Factors the court may consider in determining whether a relationship is an "intimate relationship" include, but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship an 'intimate relationship.'"

    The facts stated in your question are insufficient to enable me to offer an opinion as to whether or not the relationship you have with your fiancee's aunt would constitute an "intimate relationship" within the meaning of the new law. I recommend that you consult with an experienced Family Court attorney about this. If you are unable to afford an attorney, you can file the Family Offense petition on your own and let the Court determine the issue.

    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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