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On August 3, 2021, Governor Andrew M. Cuomo signed into law Senate Bill S5785A, making the
affirmative allegation provision for high-cost loans and subprime home loans applicable to foreclosures
of residential mortgages covering one to four-family dwellings. Real Property Actions and Proceedings
Law (RPAPL) § 1302 has required plaintiffs foreclosing on high-cost loans and subprime home loans to
affirmatively allege in the complaint that they have the authority to commence the action and have
complied with certain statutory provisions prior to commencement. Starting on January 1, 2022, RPAPL
§1302 will apply to all residential mortgages covering a one to four-family dwelling, not just high-cost or
subprime loans.

Clair Gjertsen & Weathers PLLC is pleased to announce that partners Wendy Marie Weathers, Mary Aufrecht, and Erin K. Flynn will present “New York Foreclosure and Repossession Compliance” as a live webinar on August 31, 2021. They have been invited to address the topic of foreclosure due to their years of experience defending foreclosure actions.

More information on the program can be found here:
http://www.lorman.com/409163?discount_code=Q6432847&p=15999

Supreme Court upholds CDC Eviction Moratorium, but the end is in sight. 

In response to the COVID-19 Pandemic, the Center for Disease Control (“CDC”) ordered a nationwide moratorium on residential evictions with the latest extension through July 31, 2021. The CDC has also announced that this will be the final extension of the moratorium. Since its inception, however, the moratorium has been the subject of numerous lawsuits with courts from across the country ruling on its constitutionality. Now, after much discussion, the Supreme Court has weighed in on the matter. 

Eviction Moratorium Lawsuit

In the District of Columbia, an assortment of property owners and realtor trade associations filed suit against the CDC challenging the moratorium. In Alabama Assn. of Realtors v United States Dept of Health and Human Services, No. 1:20-cv-003377 (D.D.C. May 5, 2021), the District Court ruled that while CDC has comprehensive rulemaking powers, the moratorium on residential evictions surpassed its authority.  In response, the CDC requested that the decision be stayed to allow time for them to appeal, which was granted by the District Court. This ruling was appealed by the Alabama Association of Realtors and eventually made its way to the United States Supreme Court. 

U.S. Supreme Court Upholds CDC Eviction Moratorium, but the End is in Sight

In a narrow 5-4 decision, the U.S. Supreme Court left the eviction moratorium in place. Chief Justice Roberts along with Justices Breyer, Kagan, Sotomayor, and Kavanaugh voted to deny lifting the moratorium. In a separate concurrence, Justice Kavanaugh wrote that while the District Court was correct that the CDC had exceeded its existing statutory authority, the Court should not lift the eviction moratorium given the pending expiration of the moratorium on July 31, 2021. By allowing the moratorium to remain in place until then, “those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” He went on to write that any further extension of the eviction moratorium would require, “clear and specific congressional authorization.” Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application to vacate the stay and have the order invalidated nationwide immediately.

Justice Kavanaugh in his concurrence was influenced by the CDC announcing that the moratorium will not be extended further. With the CDC not inclined to impose any further extensions, July 31, 2021, marks the end of the much-litigated nationwide eviction moratorium. As such, Landlords will be allowed to proceed with their evictions nationwide unless further prohibited by state restrictions.

Current State of Evictions in New York

While the CDC nationwide moratorium is ending soon, the state legislature in New York has added additional roadblocks for landlords. On May 4, 2021, Governor Cuomo extended the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. This extension acts to prolong the moratorium on residential and commercial evictions until August 31, 2021 for tenants who have suffered a COVID-related hardship. It is unknown at this time if a further extension will be passed by the State. 

Have Questions About the Eviction Moratorium in New York? 

Clair Gjertsen & Weathers PLLC continues to monitor this ever-changing landscape. For additional questions regarding the implications of these decisions and related landlord/tenant issues, we invite you to contact Clair Gjertsen & Weathers PLLC by calling 914-472-6202. We look forward to hearing from you.

The Consumer Financial Protection Bureau has finalized new mortgage servicing guidelines. These new guidelines, known as the 2021 Mortgage Servicing COVID-19 Rule, are designed to give homeowners who suffered hardship due to the pandemic a path to get back on track with their mortgage while also encouraging loan servicers to evaluate borrowers for loan modification instead of commencing a foreclosure action in 2021.  This Rule is effective August 31, 2021, the day after New York’s foreclosure moratorium is scheduled to end.

Streamline Mortgage Loan Modifications

The 2021 Mortgage Servicing COVID-19 Rule encourages servicers to offer streamlined loan modifications, which are loan modifications offers made without a complete evaluation of the borrower’s financial situation. The Rule also prohibits interest accrual on any delayed portion of the loan, which is due at maturity, this is commonly known as a balloon payment. 

New Mortgage Loan Procedural Safeguards

The 2021 Mortgage Servicing COVID-19 Rule includes additional procedural safeguards for the period of August 31, 2021 through December 31, 2021. During this period, a loan can only be referred for foreclosure if

• the property is abandoned,
• the borrower is unresponsive to servicer outreach, or
• the borrower has been evaluated based on a complete loss mitigation application.

Principal Residence Mortgages Only

The Rule applies only to the borrower’s principal residence and not to investment properties, second homes, or reverse mortgages. The Rule also does not apply if the loan was more than 120 days delinquent before March 1, 2020 or if the statute of limitations will expire before January 1, 2022.

Have questions about the new mortgage servicing guidelines from the CFPB?

We are an experienced real estate and loan modification law firm that has helped thousands of clients with real estate transactions and mortgage loans.  We understand that the mortgage loan servicing guidelines can be a bit overwhelming, and that is why we’re here to help you.  Please give us a call to schedule a free consultation at 914.472.6202.

President’s Biden’s American Rescue Plan Act of 2021, put the repayment of federal student loans on pause, interest-free through the end of September for a total of 18 months.  Over 44 million Americans have unpaid student loan debt totaling more than 1.6 trillion dollars, and as September is only a few months away, you may be wondering, if there is any way to eliminate that debt?

Can student loan debt be discharged in bankruptcy?

For a long time, if you had considered a bankruptcy filing to relieve your student loan debt, an attorney might have told you that your student loans cannot be discharged in bankruptcy.  While this statement is not accurate, the bar is high and the process is more burdensome than it is for other types of debt.  In order to qualify for a discharge of this type of debt, the filer (aka “Debtor”) would have to bring a lawsuit (“Adversary Proceeding”) within the bankruptcy and have to prove an undue hardship as outlined in section 523(a)(8) of the Bankruptcy Code.  

What is an Adversary Proceeding?

Under the U.S. Bankruptcy Code, an adversary proceeding is “a proceeding to determine the dischargeability of a debt.”  Effectively, it is a lawsuit within your bankruptcy, whereby you are suing the holder of your student loans for a discharge of your student loan debt.

What does the Bankruptcy Court Consider when reviewing your Student Loans?

In order to have the Court agree to discharge your student loans, you have to prove that repaying them would cause you an “undue hardship”.  The Court will also consider if you’re seeking a discharge of your student loans in good faith.  This means the Court will look at your history of payments to see if you tried to repay your loans, how many payments you made, etc…  

Undue Hardship Standard:

In determining what constitutes an undue hardship, most Courts adhere to a three-part test created by the Second Circuit in Brunner v N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir. 1987).  The “Brunner Test” provides that student loan debt can be discharged if the debtor establishes by a preponderance of the evidence that:

1. He/She cannot maintain, based on current income and expenses, a minimal standard of living for himself/herself and his/her dependents if forced to repay the loans;
2. Additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period; and
3. He/She has made good faith efforts to repay the loans.

Courts have generally only granted a discharge of student loan debt through the Brunner Test based on dire circumstances.  For example, a court may consider a minimal standard of living if:

• Your income has been below the federal poverty level for several years and does not show signs of improving
• You are on public assistance or dependent on a family member
• You have a debilitating mental or physical illness or permanent injury
• You have a child with a serious illness who requires round-the-clock care
• Divorce reduced your family income with no hope of it returning to its previous level
• Disability checks are your only source of income
• You depend on public assistance to support your children
• You support a spouse who was seriously and permanently injured in a car accident or who has developed a total disability

The bottom line depends on your situation, as well as whether the student loan creditors are willing to work with you and acknowledge your undue hardship.  These creditors are big companies with attorneys representing them, which is a good reason why you would want an experienced attorney representing you through this process.

Student Loan Mediation Before Litigation Program (SLM Program)

If you are not sure if you qualify for a discharge under the “Undue Hardship Standard”, but are having difficulty paying your student loans, the United States District Bankruptcy Court for the Southern District recently created a program, as of January 27, 2020, to help resolve student loan disputes through a court-supervised mediation process.  This new program has created a forum for debtors and creditors to discuss consensual repayment options for government student loans and possible workouts for private student loans.

The SLM Program facilitates two different types of Student Loan negotiations:

1. Requests for Student Loan Repayment Option Relief, such as a loan modification and
2. Requests for resolution over disputes over the dischargeability of a Student loan debt.

What are examples of Student Loan Repayment Option Relief?

• Deferment
• Forbearance
• Rehabilitation
• Consolidation
• Income-Based Repayments

What counties are included within the Southern District of New York?

• Westchester
• Rockland
• Putnam
• Orange
• Dutchess
• Sullivan
• New York
• Bronx

We Can Help You File Bankruptcy With Student Loan Debt

While you do not technically have to go through an attorney when filing bankruptcy on student loans, bankruptcy and the student loan process can be an incredibly complex process.  It requires determining which type of bankruptcy you’ll file and bringing an adversary proceeding, or filing for the SLM Program.  Going through it alone could mean extra time, incorrect filings and, possibly a lost case.  We are an experienced student loan bankruptcy law firm who has helped thousands of people in financial distress.  We understand that student loans can be overwhelming and daunting and are here to help you through the process.  Please give us a call to schedule a free consultation at 914.472.6202.