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02/25/10 @ 11:00:48 pm by admin
What is Stepparent Adoption in New York State?
Stepparent adoption in New York is the adoption of a spouse's child by a stepparent. The adopting stepparent must be willing to assume financial and legal responsibility for the child and also agree to release the non-spouse biological parent of their parental responsibilities.
Does the non-spouse biological parent have to consent to the adoption?
New York law requires that the child's parents both consent to the adoption, unless:
1) The parent has failed to visit and communicate with the child for six months.
2) The parent is mentally ill or mentally retarded and is unable to care for the child.
3) The parent has surrendered to an authorized agency under social services law.
4) The parent's child has had a guardian appointed under social services law.
5) The parent has executed an instrument, which is irrevocable, denying the paternity of the child.
Does the Child have to Consent to the Adoption?
New York Law requires the consent of children over fourteen years of age, unless the judge or surrogate in his or her discretion dispenses with such consent.
Will the non-spouse biological parent be required to pay child support in the future?
Once the adoption is final the former parent will no longer be required to pay child support, but will continue to be responsible for arrears in child support.
Will a new Birth Certificate be issued for the child?
Yes, although it takes a while to update the birth certificate with the new parents.
How much does it cost?
Court Fees in Erie County:
Investigator (Homestudy) - $400.00
Transcript - Approximately $30.00 per child
Attorney Fee:
Range $750.00 - $1500.00 per child (depends on the circumstances.
Need an Adoption Lawyer?
If you need an Adoption Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.
Categories: Stepparent Adoption
02/25/10 @ 08:55:56 pm by admin
Eviction is a Legal Process. The landlord CANNOT just call the police and have a tenant evicted because he wants the tenant out. The tenant has the right to due process.
There are two (2) types of evictions:
1) Non-payment
2) Holdover
A nonpayment eviction is an eviction for nonpayment of rent. Under New York State Law, a landlord seeking to evict a tenant for non-payment must first give the tenant a chance to pay, by giving the tenant a three-day notice in writing, stating that the tenant has three days to pay all the rent in full or the tenancy will be terminated.
A Holdover eviction is an eviction for remaining on the premises after the lease has expired or remaining on the premises after receiving notice that the lease has been terminated because of a breach of the lease agreement or after receiving notice that the landlord is terminating a month to month tenancy.
Regardless of the type of eviction, the procedure is mostly the same and begins when the tenancy is terminated. In a non-payment case the eviction can start after the three (3) day notice is given and no payment is made in three (3) days. The act of non-payment terminates the tenancy. The holdover eviction can start as soon as the tenancy is terminated because of breach, or after the expiration of the notice period in a month to month tenancy.
Once the tenancy is considered to be terminated the landlord may file in court for eviction. The landlord CANNOT go directly to the sheriff. The landlord must get a court order first. To get the court order, the landlord files a petition and obtains a hearing date. The hearing date MUST be no less than FIVE DAYS from the date of service of the petition on the tenant. The hearing date is required to be scheduled between five (5) and twelve (12) days after the tenant is served with the petition.
Service is made either by having a third party personally hand the petition to the tenant (or other type of personal service). If the tenant is avoiding service it may be made by nailing the petition to the door and sending a copy by mail (Nail and Mail). (Note: If service is made by nail and mail, and the tenant does not make a personal appearance in court, the landlord will be unable to get a money judgment on that day for the arrears in rent, however the landlord will get the warrant.)
The hearing is a summary proceeding. If the judge finds that the tenancy is terminated because of non-payment or for holdover the judge will sign a warrant of eviction. The landlord may also obtain a money judgment for the arrears due in rent if personal service was made or if the tenant makes a personal appearance in court.
Once the warrant is signed by the judge the landlord will then need to submit the warrant to the sheriff. The sheriff must give seventy-two (72) hours notice to the tenant before enforcing it.
The landlord has no right to garnish wages without a money judgment. If the landlord does not get a money judgment during the eviction proceeding, he may sue the tenant in small claims court at a later date.
One other option for a tenant may be to file for bankruptcy. If the warrant of eviction was issued prior to the bankruptcy filing the eviction needs to be cured and future rent needs to be posteded with the bankruptcy court. In some cases, the filing of a bankruptcy case creates an automatic stay of the eviction proceedings against the debtor.
Landlords beware. The landlord tenant law in New York is heavily weighted in favor of the tenant. There are strict procedural rules and if the tenant shows up to court with the back rent money he will not be evicted for non-payment.
Need an eviction Lawyer?
If you need an eviction Lawyer please click HERE for a free web counsutation. I NO LONGER DO FREE TELEPHONE CONSULTATIONS ON EVICTIONS BECAUSE I AM GETTING TOO MANY CALLS.
I charge $650.00 plus costs for an eviction in the City of Buffalo and $550.00 plus costs for an eviction in the suburbs located in Erie County and the City of Lackawanna and the City of Tonawanda. Costs usually total about $100.00, for process service and filing fees.
Categories: Landlord Evictions
02/25/10 @ 06:44:18 pm by admin
How do I find the Right Small Business Lawyer?
If you own or intend to start a small business, you are probably going to need a lawyer. A small-business lawyer can help you start your business, review proposed leases, negotiate contracts, and prepare contracts.
If you intend to do business in New York you are probably aware that New York has plenty of taxes and regulations. A small business attorney can help you understand what regulations apply to your business, and help you comply with those regulations.
You should also consult with a small business lawyer to decide what type of business formation best suits your needs. For example, whether you will form a Sole Proprietorship, Partnership, Corporation, S-Corporation, Limited Liability Company, Limited Partnership, Limited Liability Partnership, or Not for Profit Corporation.
Although most lawyers can do the legal work it may be difficult to find the right lawyer for you and your business. Consider the following when choosing your lawyer:
1) Time and Attention - If a lawyer does not seem to have time for you, he or she will not give you the attention you need.
2) Understanding of your Business - Every small business is different so you need a lawyer willing to learn about your business. Different businesses have different problems and different needs.
3) Understanding of Potential Problems - Your lawyer should be able to explain what problems you may encounter and explain how to avoid them or minimize the risk.
4) Communication - Your lawyer should be ready, willing and able to explain even the most complex legal situation in terms you can understand.
5) Affordable Fees - Before you hire a lawyer, make sure you understand his or her fee system. Ask about fees for specific jobs, such as drawing up legal documents.
6) Personality - You should like your lawyer and be comfortable with his or her advise. He or she should also be a good match. For instance, if you are the type that does not pay close attention to detail, find a lawyer that does.
Need a Small Business Lawyer?
If you need a Small Business Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.
Categories: General Information
02/25/10 @ 03:24:42 pm by admin
If you are behind on your bills it can be very stressful, especially if you are unfamiliar with the path of the collection process. The following is an outline of the general path of the collection process.
Debt Collection by the Original Creditor
Typically, if you are ten (10) to fifteen (15) days behind on your payments to the Original Creditor you will experience some friendly reminders via telephone or mail to pay your bill. In an effort to preserve the relationship the creditor will start by sending you a letter saying that this is a friendly reminder that you forgot to pay your bill this month. You may also get a so called courtesy phone call reminding you to pay your bill.
Regardless if you paid the bill after receiving the letter or call, your next statement will reveal a nice penalty for being late on the payment (especially if it is a credit card). You will get a late fee, and/or an over the limit charge, and/or an interest rate hike. The new rate could be as high as 25% per annum in the state of New York.
If your bills continue to go unpaid for a couple of months the calls from the original creditor will occur more often and will become more intense. The creditor may call so often that you begin to feel substantial pressure. Be sure not to make the mistake of telling them where you work because they will be sure to call. They will also want to know how your job is going, and if you have any friends or relatives that can pay your bills.
The calls will likely continue for about three to four months and then after six months the original creditor will give up and "charge off" your account so they can write it off on their income taxes as "bad debt expense". The creditor will then report the "charge off" to credit reporting agencies and sell your debt on the secondary debt market for pennies on the dollar to some collection agency.
Collection Agencies (Third Party Debt Collectors)
Once your debt has been purchased by a collection agency the process generally gets more intense. Collectors earn the majority of their income from commissions on money collected. Although collection agencies serve a legitimate legal purpose collectors sometimes can be very abusive because of the profit motive.
In 1977, The Fair Debt Collection Practices Act (FDCPA) was passed by the federal government to curb abuse. The FDCPA makes it illegal for third-party collectors to threaten violence or harm to a debtor, use obscene language, or repeatedly use the phone to harass a consumer. The FDCPA also makes it illegal for third-party collectors to threaten to arrest a consumer, threaten to seize a consumers property, or threaten to garnish a consumer's wages unless the collector intends to do so and it is a legitimate legal cause of action.
The FDCPA places certain constraints on a third-party collection agencies. For instance, a collector must stop all contact with a consumer about a debt if the collector receives a written notice requesting no further contact or a written notice of a refusal to pay a debt. The act also makes it illegal for collectors to talk to a third party, such as consumer's employers, relatives, neighbors or friends about a consumer's debts.
In addition, when your debts go to a collection agency the agency is required to notify you by mail that they’ve taken over the account and are attempting to collect on it. The initial notification from the collection agency will also contain information telling you that you have thirty days in which to dispute the accuracy of the debt. If you challenge the validity of the debt the agency will have to go back to the original creditor and verify that the debt is accurate. During the time that the debt is being validated no further collection activity may take place.
Remember, the FDCPA only applies to third-party collectors. It does not cover the original creditor so long as the original creditor continues to collect the debt in their own name. (If an original creditor is using unfair and deceptive collection practices you can report them to the Federal Trade Commission.)
Consumers can file a lawsuit against debt collection agencies that violate the FDCPA. The maximum fine that can be imposed under the FDCPA is $1000, however, consumers can also win damages for emotional distress. If consumers retain private counsel, they can also recover attorney's fees. In addition, violators may be subject to class action lawsuits.
The Legal Process
At some point in the collection process the owner of your debt may file a lawsuit against you, especially if you own real property. The first step in the process is service of a summons and complaint. Typically a process server will come to your door and hand you the summons and complaint or leave it with your spouse or someone 18 years of age or older. It is important that you take note of the date you were served because you will have 20 days to answer the lawsuit so that a default judgement is not taken against you. Answering a lawsuit is a formal process so a letter or phone call will not work. If you are served with a summons and complaint be sure to contact a lawyer immediately so that you may preserve your rights with a formal answer, and also so you may explore the possibility of filing bankruptcy.
In the event a judgment is taken against you because you failed to answer, or your legal strategy proved unsuccessful, a judgment creditor may levy your bank accounts, garnish your wages, and place liens on your real property to satisfy the debt.
Duly recorded Judgments earn a 9% interest rate per annum in the State of New York, and automatically create a lien on real property owned by the debtor in the county where the judgment is filed.
In order to figure out where your accounts are, what assets you have, and where you work, the creditor may serve an information subpoena on you with written questions or request that you appear at a certain location for a deposition. Failure to comply is contempt of court.
Once the creditor learns where you are employed it is likely that he will have the county sheriff garnish your wages. Your wages may be garnished up to 10% in the state of New York.
The creditor may also submit information subpoenas on banks in your area along with retraining notices. If you have an account at the bank where the restraining notice is sent your accounts will be restrained for twice the amount due on the judgment (your outstanding checks will bounce).
If you have a judgment against you be sure to contact a lawyer for advise on how to protect your assets. Don't wait until it is too late.
Need a Collection Lawyer?
If you need a Collection Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.
Categories: Collection Agencies
02/25/10 @ 11:26:46 am by admin
