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Remote Witnessing For Real Property Conveyances During COVID-19

Month: April 2020

Remote Witnessing For Real Property Conveyances During COVID-19

Posted on by rd_admin

On April 7, 2020, in response to the COVID-19 pandemic, New York Governor Andrew Cuomo signed Executive Order 202.14 (“EO 202.14”) which, among other things, authorizes “remote witnessing” for property conveyances under Article 9 of the New York Real Property Law.  Remote witnessing may be performed utilizing audio-video technology provided that the following conditions are met:

  • The person requesting that their signature be witnessed, if not personally known to the witness, must present valid photo ID to the witness during the video conference, not merely transmit it prior to or after;
  • The video conference must allow for direct interaction between the person and the witness, and the supervising attorney, if applicable (e.g., no pre-recorded videos of the person signing);
  • The witness must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
  • The witness may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
  • The witness may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

EO 202.14 will ease restrictions on parties seeking to convey real property during social distancing restrictions and stay-at-home orders.   Further, EO 202.14 allows New Yorkers to execute and remotely attest to wills under Estates Powers and Trusts Law (EPTL) 3-2.1(a)(2), EPTL 3-2.1(a)(4).  Remote witnessing will be available to New Yorkers under EO 202.14 until May 7, 2020.

For more information about Executive Order 202.14, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

Please visit Riker Danzig’s COVID-19 Resource Center to stay up to date on all related legal issues.

Ninth Circuit Finds Debt Assignee Can Be Liable Under the FDCPA, Even If It Did Not Communicate with Debtor

Posted on by rd_admin

In a split decision, the United States Court of Appeals for the Ninth Circuit recently held that a company that “buys and profits from consumer debts” can be liable under the Fair Debt Collection Practices Act (the “FDCPA”) even if it does not directly communicate with any consumers.  See McAdory v. M.N.S. & Assocs., LLC, 2020 WL 1128813 (9th Cir. Mar. 9, 2020).  In this case, the original creditor assigned the plaintiff-debtor’s debt to defendant.  Defendant then contracted with another entity (“MNS”), who attempted to collect the debt from plaintiff.  Plaintiff eventually brought this action against defendant and MNS alleging violations of the FDCPA.  According to plaintiff, defendant was a debt collector under the statute because it was a “business [whose] principal purpose . . . is the collection of any debts,” and therefore defendant was vicariously liable for MNS’s actions.  Defendant moved to dismiss, arguing that it never communicated with plaintiff and therefore could not have violated the FDCPA.  The District Court agreed and held that “[d]ebt purchasing companies like [defendant] who have no interactions with debtors and merely contract with third parties to collect on the debts they have purchased simply do not have the principal purpose of collecting debts.”

On appeal, the Court reversed. Following the lead of the Third Circuit, it found that the FDCPA defines debt collectors in two ways:  (i)  a “business [whose] principal purpose . . . is the collection of any debts” and (ii) one “who regularly collect[ ] . . . debts owed or due another.”  See Barbato v. Greystone All., LLC, 916 F.3d 260 (3d Cir.), cert. denied sub nom. Crown Asset Mgmt. LLC v. Barbato, 140 S. Ct. 245 (2019).  Although the second definition is concerned with the defendant’s debt-collection actions, the first is concerned with “whether debt collection is incidental to the business’s objectives or whether it is the business’s dominant, or principal, objective.”  In this case, the Court found that the complaint properly alleged that defendant was a debt collector under the first definition because the principal purpose of its business is the collection of debts.  Accordingly, defendant could not avoid liability simply by referring the actual interactions with consumers to a third party.  “‘Collection’ by its very definition may be indirect, and that is the type of collection in which [the defendant] engages: it buys consumer debt and hires debt collectors to collect on it.”  In dissent, one judge argued that there should be no liability for defendant because “the FDCPA does not contain any textual basis for vicarious liability of one ‘debt collector’ for the acts of another ‘debt collector,’ even were [defendant] validly to be classified as a ‘debt collector.’”

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

Coronavirus Loss of Income or Job; Modification of Child Support vs. Enforcement; Is it All a Temporary Change in Circumstances?

Posted on by rd_admin

At this exact moment, as this Blog is being authored, there are thousands of New Jersey residents out of work, applying for unemployment, and/or having significantly diminished income due to the Novel Coronavirus/COVID-19 pandemic and state-wide travel and business restrictions.  Coexisting with this crisis are thousands of Marital Settlement Agreements, Child Support Orders, Custody Orders and Alimony Orders requiring payments to be made from one former spouse to the other.  In subsequent posts I will discuss custody, alimony and equitable distribution; however, this piece focuses on the daily rising number of child support orders and agreements that are not being met.  By the time this crisis is over it is conceivable that more than 60% of responsible child support payments will be in arrears.

Historically, when it comes to child support enforcement (and alimony or spousal support) and modification, courts examine the finances and assets of the parties to determine if a change in the financial circumstances has been established to warrant a modification.  Is there a loss of job?  A loss of income?  An increase or decrease in income or the financial circumstances of the parties?  The court also seeks to determine the duration of the changed financial circumstances and whether the change is temporary.  The seminal New Jersey case on such modifications is Lepis v. Lepis.  Lepis, in summary, directs that a payor seeking or requesting modification must make an initial prima facie showing of “changed circumstances” that have prevented them from supporting himself or herself.  Either parent may file a motion with the court to increase or reduce child support payments based on a changed circumstance. The parent bringing the motion must be able to prove to the court that he or she has experienced changed circumstances (NJSA 2A:34-23, NJSA 5:6A) that are significant and beyond temporary. If the court determines the circumstances warrant a modification to support obligations, the New Jersey Child Support Guidelines will be used to calculate the new payment.

A variety of circumstances can rise to the level of justifying a modification. Each case is subjectively analyzed and evaluated by the court to determine if a substantial change has taken place, whether the change is permanent and whether it is unexpected. Namely, the change cannot be something temporary and the parent must not have anticipated or purposefully caused the change to occur. Common examples of a substantial change in circumstances may include:

  • Job loss
  • Income reduction
  • Income increase
  • Changes to parenting time (increase or decrease)
  • Major health issues of the parent or child
  • Change in child care expenses
  • Additional children the parent needs to support

COVID-19 has created a sudden, unexpected change in financial circumstances for many beyond their control.  The impact to many has been the loss of jobs, loss of businesses and loss of income, and the individuals have no control as governments are forcing the shut-down of non-essential businesses, travel is restricted, and curfews are in place.  In addition, social distancing has become the widespread normal impacting businesses and employers.  Given these factors, it is clear that many payors of support have a significant change in their financial circumstances, through no fault of their own and have little options in the immediate foreseeable future.  At the same time, this is all new territory and the question that many judges will view differently is whether the change is temporary or more long-lasting sufficient to warrant a modification.  Two cases decided pre-coronavirus crisis may prove instructive.

In the case of Stephens v. Pickett, a father filed a motion with the court to modify his child support immediately after he was laid off from his job. The family court granted his motion and reduced his child support obligation by more than half.  On appeal, the Appellate Division reversed the family court’s decision, finding that the father filed for a modification of his child support before even attempting to secure another job at similar wages.  In fact, his application was made so close in time to his lay-off that he did not have the opportunity to seek alternative employment.  For this reason the Appellate Division determined that a true change of circumstances did not occur and, at that point, there was no reason to believe that the father’s change in financial circumstances was “anything but temporary.”

In Goldstein v. Goldstein, the father filed a motion for a downward modification of his support after losing his job.  The Family Part judge entered an order denying his motion for a downward modification of his child support obligation.

The parties’ divorce settlement agreement (MSA/PSA) required the father to pay child support of $700 per week for both children and continue to provide medical insurance for them.  If he lost coverage through his employer, however, the parties would split the cost of the insurance.  At the time of the MSA/PSA and divorce the father was earning a gross annual income of $225,575 as a partner of a law firm.

The parties entered into the MSA/PSA and the father left his law firm due to alleged mental health issues. He then began receiving disability benefits of approximately $16,500 per month from two different insurance companies.

As a result of losing his job, he filed a motion for a downward modification of his child support obligation on the grounds of changed circumstances due to his deteriorating financial position.  He included a Case Information Statement (CIS) with his motion that listed $31,824 in reported income for 2015.  This amount included some compensation from his former law firm, but failed to disclose $700 per month in additional income from the firm.  He also listed a bank account without including the value of the account and significant retirement accounts.

The motion judge denied the motion, despite the precipitous drop in income, and found that his year-to-date income up to the time of his motion was enough to continue child support payments. The judge also noted that plaintiff had substantial retirement assets and still had excess income sufficient to support himself and continue his support obligations.  The judge specifically noted that the father failed to report all sources of income, failed to seek other employment, and was in no worse a financial position.  Therefore, the judge concluded that a change of circumstances had not occurred.

The Appellate Division affirmed, finding that temporary unemployment is not a basis for a modification of child support.  The Appellate Division emphasized that it has consistently rejected requests for modification on the basis of changed circumstances where the change is only temporary or is expected and has not yet occurred.

Both Stephens and Goldstein look at the immediateness of the application in relation in time to the loss of employment and decrease or loss of income.  Both cases look at other income, other sources of income, and other job opportunities or the need to seek other replacement employment and/or income.   In other words, the coronavirus happened suddenly. causing job loss, income loss and business interruption since March 21, 2020, (ten days ago as of this writing), when Gov. Murphy issued Executive Order 107, closing all non-essential businesses, for the safety and health of the residents.  So it must be, as in Goldstein and Stephens, “temporary” given the immediateness of the event.  Right?  We are told this virus will recede in the coming months.  Again, it is temporary.  Right?

The counterpoint to all of this, is that something this widespread and pervasive, so quick, has never been seen before, never been dealt with in the context of wide-sweeping business closure, job loss, and income loss nationwide.  Take for instance a small restaurant owner or hair salon owner that has simply lost their business and all income right at this moment.  Ultimately, they may be able to start a new business in a year or so or re-open somewhere in the future, but the loss of income and business may have caused a complete shuttering of the business.  Therefore, when the Stay in Place, Stay Home Order is lifted, they will not simply be able to re-open.  In addition, in all of the cases where Lepis is triggered and the issue is change of circumstance, courts look to replacement income, and efforts to seek replacement employment.  In the current situation one cannot go out and simply obtain new employment.  The barber, for instance, that owns his own salon that is now closed, cannot go and get a “job” as a barber somewhere else because all the salons are closed, nor can the chef get a job at another restaurant.  Even if they could, it would most likely be for the same level of income.  But it is still temporary.  Right?   Hopefully, in most cases it will be.  That said, one can envision a fact pattern where the permanence and significant impact of the loss or diminution of income is so pervasive already that it will clearly last well past Executive Order 107, the global pandemic and beyond.

CMS and New Jersey Make Significant Changes to Regulations In Light of COVID-19

Posted on by rd_admin

Late Monday on March 30, CMS made sweeping changes to just about every facet of healthcare on the Federal level from hospitals to ambulatory surgery centers to nursing homes and ambulances.  The changes are significant and numerous so this update will only focus on several of those changes.   CMS issued a detailed twenty-six page summary of the changes.   CMS also issued fact sheets for each specific provider type regarding the regulatory changes, which can be accessed on CMS’ website.

On the State level, Governor Murphy executed Executive Order No. 112, which expanded the roles of advanced practice nurses and physician assistants, and provided immunity to physicians in the course of providing healthcare services in support of the State’s COVID-19 response, whether or not within the scope of their practice.   Governor Murphy executed a corrected version of Order No. 112 that removed any reference to malpractice insurance.

For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

Federal Regulatory Changes

Waivers of Sanctions Under the Physician Self Referral Law (“Stark Law”)

On March 30, 2020, CMS issued blanket waivers of sanctions under the Stark Law.  The blanket waivers are retroactively effective to March 1, 2020 and may be used without notifying CMS.  The guidance document provides numerous examples of these blanket waivers.  A provider can ask for specific and additional waivers by making an application to 1877CallCenter@cms.hhs.gov and include the words “Request for 1877(g) Waiver” in the subject line.   All requests should include the following minimum information: (a) Name and address of requesting entity; (b) Name, phone number and email address of person designated to represent the entity; (c) CMS Certification Number or Taxpayer Identification Number of the requesting entity; and (d) Nature of request.

Telemedicine Waivers for Physicians and Other Practitioners

As outlined in our previous update, CMS has already expanded telemedicine and telehealth on the Federal level.  CMS’ guidance document regarding waivers for practitioners focuses mostly on the expansion of telemedicine or telehealth.  In that regard, CMS added eighty-five (85) additional telemedicine codes to address services in connection with COVID-19.   This link provides all of the codes for telemedicine, including the additional 85 related to COVID-19.   Practitioners can provide these services to new or established patients, and providers can waive Medicare copayments for these telehealth services for beneficiaries in Original Medicare.

In addition, the CARES Act allocated $200 million to support healthcare providers' use of telehealth services during the pandemic. The program, if approved, would help eligible healthcare providers buy telecommunications, broadband connectivity and devices needed to support telehealth.

Importantly, as we previously reported, the Office of Civil Rights (“OCR”) exercised its enforcement discretion to not impose penalties for noncompliance with the HIPAA rule in connection with the good faith provision of telehealth using nonpublic-facing audio or video communication products during the COVID-19 nationwide public health emergency.

Here are the platforms physicians can use during the emergency:

Apple FaceTime
Facebook Messenger video chat
Google Hangouts video
Zoom
Skype

Here are the platforms physicians cannot use:

Facebook Live
Twitch
Tik Tok

Waivers for Hospitals and Surgery Centers

Under Federal requirements, hospitals must provide services within their own buildings.  In the wake of COVID-19, however, CMS has relaxed certain conditions allowing hospitals to provide hospital services outside of their own buildings including ambulatory surgery centers, temporary constructions, hotels, and dormitories while still receiving hospital payments for services provided in these other structures.  These waivers will also allow hospitals to perform COVID-19 tests on people at home and in other community-based settings.  In addition, CMS provided waivers to allow hospitals to provide support, such as child care services and laundry service for personal clothing, to physicians and other staff while providing patient care.

Significantly, the waivers will allow ASCs, subject to New Jersey laws, to temporarily enroll as hospitals and to provide hospital services to help address the urgent need to increase hospital capacity to take care of patients. These new flexibilities will also permit ASCs to offer services typically provided by hospitals, such as cancer procedures, trauma surgeries, and other essential surgeries.  ASCs that wish to enroll to receive temporary billing privileges as a hospital should call the COVID-19 Provider Enrollment Hotline to reach the contractor that serves their jurisdiction, and then complete and sign an attestation form specific to the COVID 19 public health emergency.

Emergency Use Authorization

On March 28, the FDA granted emergency use authorization to allow patients with COVID-19 to be treated with hydroxychloroquine and chloroquine.  As a result, the authorization means hydroxychloroquine and chloroquine drugs donated to the strategic national stockpile will be distributed to hospitals to be used for certain COVID-19 patients. The authorization does not mean the drugs are approved, but instead, the drugs can be prescribed for COVID-19 for only as long as the pandemic lasts. An emergency use authorization is not an approval.  Emergency use authorization means that the drug may be effective, while approval means there is evidence showing it is effective.

State Regulatory Changes

Governor Murphy Signs Order to Remove Barriers to healthcare Professionals

On April 1, 2020, Governor Murphy signed a corrected version of Executive Order No. 112, which authorizes the New Jersey Division of Consumer Affairs (“DCA”) to reactivate the license of any healthcare professional previously licensed to practice in New Jersey who retired from active practice within the last five years.  License reactivations shall be on a temporary basis throughout the duration of the State of Emergency or Public Health Emergency for COVID-19, whichever is longer.  Additionally, the DCA is authorized to issue a temporary license to practice medicine and/or surgery to any physician or the plenary-licensed equivalent in another country, who is licensed and in good standing in another country.  healthcare professionals who wish to reactivate their licenses and physicians who wish to apply for a temporary license shall submit an application on forms adopted by the Director of the DCA.

The order also relaxes statutory provisions that limit the scope of practice of advanced practice nurses (“APNs”), suspending and waiving compliance with provisions that would otherwise require APNs to, among other things, enter into a joint protocol with an individual collaborating physician who is present or readily available through electronic communication and obtain authorization from a collaborating physician to dispense narcotic drugs for maintenance treatment or detoxification treatment.  Compliance with statutory provisions limiting the scope of practice for physician assistants are also suspended and waived, including, but not limited to, requirements to obtain physician supervision and authorization to order or prescribe a controlled dangerous substance.

Critically, Paragraphs 7 and 8 of the order confers immunity from civil liability to services provided by providers in support of the State’s COVID-19 response during the State of Emergency and Public Health Emergency, whether or not those services are within the scope of their practice.   Governor Murphy executed a corrected version of Executive Order No. 112 to remove from Paragraphs 7 and 8 the phrase “to the extent that the practitioner’s existing liability insurance does not provide coverage or an applicable limit is exceeded” making the immunity more clear.   The immunity applies to services provided before the execution of the Executive Order.

 

New Jersey Governor Phil Murphy Announces Residential Mortgage Relief for New Jersey Citizens

Posted on by rd_admin

On March 28, 2020, New Jersey Governor Phil Murphy announced that, in light of the COVID-19 pandemic, certain financial institutions have committed to provide New Jersey citizens with a 90-day residential mortgage forbearance and other similar financial relief.  Such institutions include, but are not limited to, Citigroup, JPMorgan Chase, U.S. Bank, Wells Fargo, and Bank of America, in addition to over 40 other federal and state-chartered banks, credit unions, and servicers.  Under this deal, residents would be entitled to the following relief upon contacting their respective financial institutions:

  1. 90 Day Grace Period for Mortgage Payments

Financial institutions will offer, consistent with applicable guidelines, streamlined mortgage payment forbearance programs of up to 90 days to New Jersey borrowers economically impacted by COVID-19.  Further, upon a continued showing of hardship as a result of COVID-19, qualifying borrowers will have the opportunity to request additional relief.

2.  No Negative Credit Impacts Resulting from Relief

Financial institutions will not report a New Jersey borrower’s late payments to credit reporting agencies, consistent with applicable guidelines, for such borrowers taking advantage of this COVID-19-related relief.

3.  Moratorium on Initiating Foreclosure Sales or Evictions

For at least 60 days, financial institutions will not initiate foreclosure sales or evictions, consistent with applicable guidelines.  This follows Governor Murphy’s March 19, 2020 Executive Order No. 106 (the “Order”), which imposed a moratorium on removing individuals from their homes pursuant to an eviction or foreclosure proceeding while the Order is in effect, and which will remain in effect for “no longer than two months following the end of the Public Health Emergency or State of Emergency established by Executive Order No. 103 (2020), whichever ends later, unless this Order is first revoked or modified by the Governor in a subsequent executive order.”

4.  Relief from Fees and Charges

For at least 90 days, financial institutions will waive or refund at least the following for New Jersey customers who have requested assistance: (i) Mortgage-related late fees; and (ii) Other fees, including early CD withdrawals (subject to applicable federal regulations).

For more
information regarding Governor Murphy’s Mortgage Relief Initiative, please
contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

Please
visit Riker Danzig’s COVID-19
Resource Center to stay up to date on all related legal issues.

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