Law.com – Federal Judge Orders Wal-Mart to Offer Health Insurance to Workers’ Stepchildren

The stepchildren of working parents in New York state are dependent children for the purposes of qualifying for coverage under federally regulated group health insurance plans, a federal judge has ruled.

William Lamica, now 13, is the son of William L. Vradenburg, husband of Wal-Mart employee Aime Vradenburg. The boy does not live with the Vradenburgs and Aime Vradenburg has not adopted him. Nor does she claim him as a dependent on federal taxes. William L. Vradenburg receives health insurance coverage through his wife’s Wal-Mart policy.

In O’Neil v. Wal-Mart, 8:05-cv-1572, Northern District of New York Judge Lawrence E. Kahn said the Wal-Mart plan provisions run counter to New York Insurance Law §2608-a, which expressly prohibits the denial of coverage to a parent’s child based on the fact the child was born out of wedlock, is not claimed as a dependent on federal tax returns or does not reside with the parent.

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Revised New York State Procedural Safeguards Notice: Rights for Parents of Children With Disabilities

The Revised New York State Procedural Safeguards Notice: Rights for Parents of Children with Disabilities, Ages 3-21 (pdf) is now available and must be used effective September 1, 2007. Also available in Word Format.

This procedural safeguards notice is similar to the notice that the U.S. Department of Education provided as a model notice, but has been modified for clarity and includes additional information specific to New York State. This notice includes the revisions required by the reauthorization of the Individuals with Disabilities Education Act (IDEA)in implementing federal regulations (Part 300 of Title 34 of the Code of Federal Regulations). All school districts and other agencies responsible for the education of students with disabilities must begin to use this notice effective September 1, 2007.

The procedural safeguards notice must be provided to parents of a student with a disability, at a minimum one time per year and also upon:

-initial referral or parental request for evaluation; -request by a parent;-the first filing of a due process complaint notice to request mediation or an impartial due process hearing;-a decision to impose a suspension or removal that constitutes a disciplinary change in placement; and-receipt of a parent’s first State complaint in a school year.

For Further Information

 

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Law.com: N.Y. Appellate Panel Finds Dead Man’s Law Applies in Disciplinary Matter


Law.com – N.Y. Appellate Panel Finds Dead Man’s Law Applies in Disciplinary Matter

In a 4-1 decision, the appellate panel ruled that the Dead Man’s Statute did apply to a disciplinary proceeding, noting that the very language of the statute said it applied to “the hearing upon the merits of a special proceeding.”

The majority of Justices David B. Saxe, Luis A. Gonzalez and James M. Catterson said the situation In the Matter of Zalk, M-6672, clearly fit the elements of the statute and thus prevented Zalk from arguing that Gellman made an oral pledge to him. The court said it was therefore compelled to find that Zalk improperly converted client escrow funds.

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This service applies Web 2.0 technology to produce a “mashup” of registered sex offenders with their addresses. Click on each sex offender located for a mug shot and short criminal history. 

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FOLLOWUP: Law.com – Lawyers Learn From HomeBanc’s Demise


Law.com – Lawyers Learn From HomeBanc’s Demise

Closing attorneys vow to accept only wire transfers after dealing with lender’s bounced checksAndy PetersFulton County Daily Report (full text)August 23, 2007

Even though a bankruptcy judge in Delaware this week saved them from financial ruin, real estate closing attorneys said they learned a powerful lesson from the collapse of HomeBanc Corp. — never accept anything but a wire transfer at closing.

At least a dozen Atlanta-area law firms received bounced checks from HomeBanc last month, before the company filed for Chapter 11 bankruptcy protection Aug. 9. By HomeBanc’s count, it bounced 134 checks worth at least $18 million, but the Georgia Real Estate Closing Attorneys Association estimates the figure was $28 million.

Assuming HomeBanc’s checks were backed by sufficient funds, lawyers had disbursed the money at closings — not only to the home’s seller and the previous mortgage holder, but also to agents for their commissions and to surveyors, court clerks and others whose payments occur at closing.

When the checks bounced, lawyers had to scramble to find ways to cover their positions. Some took out home equity loans, others filed claims on their Errors & Omissions insurance policies.

On Tuesday, the bankruptcy judge handling HomeBanc transferred ownership of the loans to the closing attorneys. This move lets the lawyers recover their money by selling the loans to banks or other mortgage lenders.

The bounced checks occurred as a result of HomeBanc getting squeezed by broad turmoil in the U.S. housing market and the global credit market. As the market tanked, HomeBanc’s primary source of funds, JPMorgan Chase, on Aug. 6 cut off money for the mortgages HomeBanc sold, according to HomeBanc’s court filings.

Regardless of the problems in the market, attorneys said the rubber check problem could have been prevented simply by requiring HomeBanc to fund its loans with wire transfers.

As a result, “some law firms are requiring 100 percent wired funds from everybody — lenders, buyers, even other attorneys,” said closing attorney Jennifer L. Dickenson of Dickenson Gilroy. “There is a really high sensitivity right now to how we get the money into our accounts.”

Why HomeBanc was allowed to fund mortgages with company checks, when the large majority of other mortgage lenders paid only by wire transfer, speaks to the clout HomeBanc carried in metro Atlanta — if not its level of intimidation.

“They were big enough they could frankly bully everybody,” said Jeffrey P. Ganek, managing partner of Ganek, Wright & Dobkin’s Midtown office. “You had to follow their rules.”

HomeBanc, or any mortgage lender, benefits by funding loans with checks as opposed to wire transfers, Ganek said. While wire transfers represent an immediate shift in money, checks take days to clear a bank, allowing HomeBanc to earn more interest on the money as it sat in escrow, Ganek said.

“Even if it’s only a day or two extra it’s sitting in an interest-bearing account, if you’re doing enough loans, it’s a lot of money,” he said.

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NY Law puts burden of proof on schools in special education disputes


The Daily Star – Online Edition

ALBANY, N.Y. (AP) — A new law will make it easier for parents of disabled children to challenge school districts’ decisions regarding their child’s education, Gov. Eliot Spitzer’s office announced Thursday.

The law signed this week makes the school district responsible for proving it is satisfying legal obligations to provide an appropriate individualized education program for a student with a disability, according to Spitzer’s office.

For more than 30 years in New York, school districts that were challenged had to prove in an administrative hearing that a student’s program was appropriate, said Spitzer spokesman Jeffrey Gordon. However, a 2005 U.S. Supreme Court ruling put the burden on the party requesting an administrative ruling, usually parents, for all states that didn’t have a specific law or regulation on the issue -including New York.

“This bill rightly places the burden of proof on school districts that have the expertise needed to assess options and the responsibilities for implementing individual educational plans,” said Spitzer…The law, which goes into effect in two months, will also strike a balance between a parent’s desire for private placements and a school district’s obligation to pay for out-of-district services, said Gordon. In the case of a parent seeking a private program for their child, they would have to prove it was more appropriate than the school district’s individualized program.

 

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Law.com – Closing Attorneys See Red Over HomeBanc Mortgage’s Bad Checks


Law.com – Closing Attorneys See Red Over HomeBanc Mortgage’s Bad Checks

Real estate attorneys caught between covering bounced checks or risking bar violations after company files for bankruptcy

Andy PetersFulton County Daily ReportAugust 16, 2007

John K. Haley, a real estate closing attorney in Buford, Ga., left work July 31 thinking the HomeBanc mortgages he’d closed earlier that day had cleared.

That turned out not to be true. Haley was one of dozens of Atlanta-area real estate closing attorneys who received bounced checks last month from HomeBanc Mortgage Corp. Lawyers estimate HomeBanc may have issued $20 million or more in bounced checks July 30 and July 31. HomeBanc filed for Chapter 11 bankruptcy protection Aug. 9.

Because HomeBanc’s primary lender, JPMorgan Chase, stopped financing the company around the end of July, HomeBanc could no longer provide funds on the mortgages it had sold. That caused a big problem for some lawyers: HomeBanc had already issued checks to these lawyers, who then disbursed the money to sellers, real estate agents, surveyors and others.

That left numerous lawyers high and dry.

“These lawyers are really scrambling right now,” said C. Scott Logan, president of the Georgia Real Estate Closing Attorneys Association.

While the state’s “good funds” law requires lawyers to wait until checks have cleared the bank before closing a mortgage, in practice most real estate closing attorneys close mortgages when they have the check in hand, without waiting for the money to clear, Logan said.

In addition to being stuck with thousands, if not millions of dollars in bounced checks, these lawyers also worry they may have violated State Bar of Georgia rules. That’s because they could have disbursed money from an escrow account when the money really wasn’t there, creating a negative balance. It’s a violation of Bar rules for a lawyer to have a negative balance in an escrow account.

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“YOU ARE IN DANGER OF LOSING YOUR HOME”

CHAPTER TEXT:

LAWS OF NEW YORK, 2007

CHAPTER 458

AN ACT to amend the real property actions and proceedings law and thecivil practice law and rules, in relation to providing additionalnotice to mortgagors that a foreclosure action has been commenced

Became a law August 1, 2007, with the approval of the Governor.Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:

Section 1. The real property actions and proceedings law is amended byadding a new section 1320 to read as follows:§ 1320. Special summons requirement in private residence cases. In anaction to foreclose a mortgage on a residential property containing notmore than three units, in addition to the usual requirements applicableto a summons in the court, the summons shall contain a notice in bold-face in the following form:NOTICEYOU ARE IN DANGER OF LOSING YOUR HOMEIf you do not respond to this summons and complaint by serving a copyof the answer on the attorney for the mortgage company who filed thisforeclosure proceeding against you and filing the answer with the court,a default judgment may be entered and you can lose your home.Speak to an attorney or go to the court where your case is pending forfurther information on how to answer the summons and protect your prop-erty.Sending a payment to your mortgage company will not stop this foreclo-sure action.YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FORTHE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT.§ 2. Subparagraph (iii) of paragraph 3 of subdivision (g) of section3215 of the civil practice law and rules, as added by chapter 77 of thelaws of 1986, is amended to read as follows:(iii) This requirement shall not apply to cases in the small claimspart of any court, or to any summary proceeding to recover possession ofreal property, or to actions affecting title to real property, exceptresidential mortgage foreclosure actions.§ 3. This act shall take effect immediately. 

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