What YOU Need to Know - "Real Estate Education" - New York State - Brokers & Salespersons

The following information is reprinted in its entirety from the Department of State's website for your information:

The Department of State’s “Real Estate Education” Campaign

The following are some basic facts that anyone looking to buy, sell or rent should know. 

These facts are part of a new brochure that is available for download on the Department of State homepage, http://www.dos.state.ny.us/.  [This is the link to the brochure itself.]

What you need to know before entering into a real estate transaction:

1. All real estate professionals[1] must be licensed by the Department of State, and they must renew their licenses every two years.
2. To check if a person who represents themselves as a real estate salesperson or broker is, in fact, licensed by the state of New York, you can search the Department of State website, http://www.dos.state.ny.us/ by clicking on the “eAccessNY” link [this is the direct link to the search area for licensed real estate professionals] and entering the name of the person or by calling (518) 474-4429.
3. Buyers, sellers, renters and landlords all have the right to hire their own broker in a real estate transaction.
4. You should not assume that an agent is acting solely on your behalf. Unless you have entered into a written agreement with the broker, he or she could be representing the other party to the transaction.
5. When you have hired an agent to represent you, he or she owes you the following duties: reasonable care, undivided loyalty, confidentiality, full disclosure and the ability to provide you with an accounting of any money collected or expended on your behalf.
6. Real estate salespeople and brokers must disclose whom they are representing in the transaction at the time of their first contact with you.
7. Commission fees are negotiable. You have the right to negotiate the amount of the commission to be paid to a broker or salesperson. There is no such thing as a mandatory commission rate.
8. If a broker collects fees that you owe to the landlord or seller, such as a deposit or the first month’s rent, the broker has an obligation to separate that money from his or her own. If the money is not immediately provided to the landlord or seller, the broker must put the money into a separate escrow account until the transaction has been closed. If the transaction does not close, the broker cannot keep the money and must return it to you.
9. Non-refundable commission deposits are not permissible. A broker earns a commission when he or she finds a person who is ready, willing and able to purchase the property or rent the apartment. Only if the broker has assisted the parties in reaching an agreement on all of the material elements of the deal has he or she earned a commission.
10. Real estate salespeople and associate brokers work under the oversight and supervision of the broker with whom they are associated. You have the right to contact the broker with any concerns about the transaction or the agent’s handling of the transaction. Some salespeople and associate brokers advertise themselves as a “team” or “group.” This is not a separate company. These agents still work for a broker who is responsible for supervising their activity.

The brochure also includes information on where New Yorkers can turn if they believe that they have been a victim of a loan scam or of abusive lending practices. New Yorkers are encouraged to visit the Department of State’s website if they have any further questions about what constitutes illegal or dishonest actions by licensed real estate professionals – and to report these actions to the Department if they experience them.

[1] To become a licensed real estate salesperson, an individual must take specific coursework and pass an exam on state real estate law and practice. To work in New York state, salespersons must be associated with a real estate broker. Real estate brokers are individuals who, after gaining two years of experience in real estate sales, take additional coursework and exams in order to own or operate their own brokerage firms. Real estate appraisers must take required coursework and exams to become certified in estimating the value of real property.

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Additional news available at http://www.dos.state.ny.us/about/new2.htm.
New York State Department of State | info@dos.state.ny.us | 518.486.9846 | 212.417.5801

NYC first in the nation for mortgage fraud

New York City was first in the nation for mortgage fraud last year, according to a report by LexisNexis Mortgage Asset Research Institute, released on April 26, 2010. To review the report, please click here.  The metro area accounted for 12 percent of all suspicious activity reports filed with the Financial Crimes Enforcement Network in 2009, squarely defeating second-ranked Los Angeles, whose suspicious activity reports accounted for 8 percent of the nation's total.

While the LexisNexis did not break down its city data further, a recent report from First American CoreLogic found that South Jamaica, Queens was first in the nation for mortgage fraud between 2004 and 2009. On the whole, New York state has seen a sharp increase in mortgage fraud over the past few years, according to LexisNexis. This year, the state -- ranked 18th in 2007 -- took second place, behind Florida. 

I always warn persons about mortgage fraud and get help quick schemes....please read more at my law site or contact our office if you are in need of assistance.

Corcoran Group Sanctioned for Failure to Preserve E-Mail for Discovery

As reported in the November 17, 2009, New York Law Journal, "A real estate company defendant in a lawsuit has been sanctioned by a Manhattan judge for its failure to preserve evidence and for persisting in deleting e-mails in spite of the court's repeated warnings to comply with discovery."

What's important in this decision (which is being appealed), is that when the court orders e-mails to be presented in discovery, just going ahead and deleting them - and wiping the hard drive (of server and personal computers alike), is not going to elicit warm regards from the court.

This is a good lesson to everyone involved in litigation.  I present below the article which appears in today's Law Journal.

Eighteen months after plaintiffs Harold Einstein and Jennifer Boyd sued the Corcoran Group in connection with the alleged deceptive marketing of a condominium, New York Supreme Court Justice Charles Ramos learned that three of Corcoran's brokers were continuing to delete e-mails from their individual mailboxes.


"[T]he failure to implement any litigation hold, not only after the commencement of litigation, but also after this court's repeated warnings that counsel should 'read [their] client the riot act', was grossly negligent and rises to the level of 'culpable conduct' required for a finding of spoliation" said the judge, in Einstein v. 357 LLC, 604199/07, ruling that Corcoran "willfully misled" the plaintiffs during the sale of the condominium.

Jay B. Itkowitz of Itkowitz & Harwood, who represented the condominium's buyers, called the ruling "groundbreaking."

He said in an interview that the ruling was the first in the state to send the "critical message" that "when you are sued or know you are going to be sued ... you have to take immediate and significant steps to preserve electronic evidence."

Errol Margolin of Margolin & Pierce, who represented the Corcoran defendants, said that he "disagreed completely" with the ruling, which he plans to appeal. Corcoran added in a statement that "we disagree with the discovery ruling and intend to file an appeal at the appropriate time. This case is still in the discovery phase and no decision has yet been made on the merits of the case."

Einstein and Boyd purchased a condominium in June 2007 for $1.3 million.

According to the complaint, Christina Coats, a Corcoran broker, had previously told the couple that the unit in Park Slope, Brooklyn had been taken off of the market because of a water leak, but that the condition had since been repaired.

Shortly after moving in, the buyers "experienced massive" flooding in the unit's recreation room during a period of heavy rain.

After repeated flooding, the plaintiffs retained an expert who advised them that the "water penetration to the recreation room had spawned a mold condition," and that the condominium was unsafe for the couple and their two children.

In December 2007, Einstein and Boyd sued Corcoran, three of its brokers, including Coats, and a number of other defendants in connection with the alleged defective design and deceptive marketing of the unit.

In June 2008, the plaintiffs served Corcoran and the brokers with a document demand.

The Corcoran defendants' lawyers claimed at an October hearing that the defendants had produced all e-mail traffic from the individual brokers, but the defendants later admitted that they had not handed over a relevant e-mail from Adam Paceli, the vice president of Corcoran, to a co-defendant.

On Dec. 10, 2008, Justice Ramos ordered the individual brokers to "produce their respective hard drives to a non-affiliated vendor ... for inspection and deleted file recovery."

But according to plaintiffs, the Corcoran defendants failed to supply them with a list of the devices and in February 2009, the plaintiffs moved to strike defendants' pleadings or compel compliance with discovery.

Corcoran responded with an affidavit from Terence Thomas, director of information technology for Corcoran, who testified that "all Corcoran e-mails, outgoing and incoming, are forwarded to a central server. As e-mails are sent and received, an exact replica of the central server is recorded on the hard drives of agents' individual computers."

The real estate company also turned over two hard drives, despite the fact that their attorneys had previously told the plaintiffs that they had no list of devices with potentially relevant data.

The plaintiffs hired Kroll OnTrack to search the hard drives, and discovered that certain e-mails were missing.

In May 2009, Thomas submitted a second affidavit, in which he said Corcoran had an e-mail deletion policy as a result of limited server space. If an individual deleted an e-mail from a local computer prior to a scheduled month-end backup, the file was not recoverable, Thomas said.

He later testified at a hearing that he had never spoken to the individual brokers about their e-mail deletion policies, did not investigate what types of electronic communication devices they used, and failed to advise anyone that a possibility existed that e-mails relevant to the litigation were being deleted.

'LITIGATION HOLD'

Justice Ramos concluded that the defendants' engaged in spoliation by selectively deleting e-mails and failing to implement a "litigation hold."

While New York case law and the Civil Practice Law and Rules are "silent" on the obligations of parties to implement a litigation hold, Ramos relied on cases from the Southern District of New York in concluding that the "failure to suspend the deletion policy or to investigate the basic ways in which e-mails were stored and deleted constitutes a serious discovery default on the part of the Corcoran Defendants and their counsel rising to the level of gross negligence or willfulness."

The judge also took to task Corcoran's attorneys with Margolin & Pierce for making "numerous" materially false statements, such as representing to the court that all e-mail traffic had been produced.

"This Court repeatedly warned counsel for the Corcoran Defendants that the failure to make a complete production of e-mails caused the Court great concern and needed to be remedied properly. Yet the Plaintiffs, and this Court, only learned about the manual deletion policy in May 2009," Ramos wrote.

By disclosing that fact 18 months into the litigation, the judge said, Corcoran defendants "willfully and unnecessarily caused extensive motion practice and delay without any reasonable justification."

Ramos found that a "reasonable fact-finder" could conclude that "at least some of the deleted e-mails were relevant to this litigation and favorable to the Plaintiffs," including one which suggested that the brokers cancelled an open house because of "heavy rain."

In addition to sanctioning the Corcoran defendants by finding they misled the plaintiffs about a walter infiltration problem, the judge also held that defendants' "contumacious conduct" entitled plaintiffs to attorney fees and costs in connection with reviewing the two hard drives and counsel fees spent in bringing discovery motions and sanctions.

Itkowitz estimated that the plaintiffs were entitled to roughly $100,000 as a result of Ramos' ruling.

All told, the plaintiffs are requesting $5 million plus punitive damages in the litigation.