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Just Thoughts is the blog of the Empire Justice Center, New York’s statewide, multi-issue, multi-strategy public interest law firm focused on changing the “systems” within which poor and low income families live. Here staff and guest authors will share stories, announcements and perspectives on timely issues related to our work.



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Assisting Non-Custodial Parents to Modify Child Support and Arrears Payments

Issue Area: Child Support

Legal services providers and community agencies throughout New York State are seeing an alarming increase in the number of very low income parents burdened with onerous child support obligations and arrears debt that adversely affect their ability to avoid homelessness, remain employed, cope with illness and disability, and maintain a relationship with their children. For the most part, legal services offices do not offer legal representation for child support matters.  Parents are left to navigate the family court and child support enforcement system without any assistance, often without success.

With this posting, we urge legal services and other community agencies to consider offering some guidance to pro se poor parents who may be entitled to a modification of their support obligation or can reduce their monthly arrears payments based on their limited income. Using the steps outlined below, parents can determine the amounts owed, whether there is a basis for modification, and which forum will entertain an appeal.  We do not assert that offering guidance will make up for the lack of legal representation and assistance available, but many parents may be able to obtain some adjustment to the amounts they must pay on their own if they understand what information they need to provide to either the county’s Child Support Enforcement Bureau (CSEB) or the court.  Although not a comprehensive list, here are some straightforward ways to assist parents to proceed pro se:


1.  The first step is to understand what is being garnished from their paycheck or disability payment.  Does the amount represent current child support, arrears, an “add-on” to arrears (see below for explanation), or some combination of these?  If the payment is made to the NYS Division of Child Support Enforcement and parents know their account number, they can obtain  a PIN number by applying online at the Non-Custodial Parent page on the OTDA website at https://www.childsupport.ny.gov/dcse/non_custodial_parent_services.html, or by calling the Child Support Helpline at 1-888-208-4485. With a PIN number, parents can view their accounts and figure out whether they are paying ongoing support, arrears, and/or add-ons and how much they owe.  They can also obtain copies of their child support orders that the Division has on file.  A copy of the order is needed to petition in family court for a modification of support.

2.  Reduce the monthly payment amount.  In some cases, the Child Support Enforcement Bureau (CSEB) will reduce the amount of monthly payment, even though it cannot reduce the total amount of arrears.  If part of the garnished amount is the “add on,” an administratively imposed garnishment that is applied when a child support respondent is in arrears, application can be made to reduce or eliminate this portion of the amount of the arrears payment.  The “add-on” portion of the payment will be reduced or eliminated if the payment of the add-on brings the individual’s income below the self-support reserve (135% of poverty for a household of one – this year the SSR is $15,755). The self-support reserve is adjusted annually and is posted on-line at https://www.childsupport.ny.gov/dcse/child_support_standards.html.   There is an application on the NYS DCSE webpage for Non-Custodial Parents, entitled Request for Review of Additional Amount that must be submitted along with a Statement of Income and Expenses and other income documentation such as a tax return or a Social Security statement.  These forms are also available at https://www.childsupport.ny.gov/dcse/non_custodial_parent_services.html.  When completed, the forms are submitted to the local child support enforcement office. The addresses of the local offices are available at https://www.childsupport.ny.gov/DCSE/LocalOffices_input.action.  To read more about the add-on see 18 NYCRR 347.9(e) and 09 ADM-02, available at http://otda.ny.gov/policy/directives/2009/ADM/09-ADM-02.pdf

3.  Apply to stop collection of arrears from exempt income and to correct mistakes.  If the parent’s sole income is SSI, public assistance, or another exempt source, there is an application on the same Non-Custodial Parent Page of the NYCSE website to stop garnishment from a bank account. This application, Mistake of Fact and/or Exempt Money Claim Form, should also be submitted if the support amount being collected does not agree with the order amount or if the order has been vacated.   If parents are receiving exempt income in a check that is being garnished, they should submit the Request for Review of Additional Amount and Statement of Income and Expenses described above and state that the income being garnished is exempt.

4.  Reduce amount of ongoing child support. The parent must petition in Family Court for this relief and it can be difficult without legal assistance.  However, the state now offers DIY (do-it-yourself) programs with which pro se petitioners can work their way through a series of questions that result in a petition and affidavit to file in court.  The link is http://www.nycourts.gov/courthelp/diy/familycourt.html and the program is quite good.  Currently, it is available in English and Spanish.  The Spanish version produces a petition in English for submission with a translated copy in Spanish for the litigant. 

If the support order includes an amount of arrears that must be paid periodically in addition to ongoing support, a request to reduce that amount should be included in the same petition.  Please note that there is no reference to arrears payments in the standardized or DIY petition forms, so the request will have to be added by the petitioner.

5.  Cap the amount of arrears owed at $500.  Family Court Support Magistrates cannot reduce the total amount of arrears owed, except in very narrow circumstances.  However, pursuant to the Family Court Act § 413 (1) (g), a noncustodial parent can petition the Family Court to limit the amount of arrears owed to $500 if his/her income was below the federal poverty line for a single individual at the time the arrears accrued.  Case law dictates that the parent must make application to the court for such relief and must show that the income limitation was due to disability or some other inability to earn income.  Proof that the individual is receiving public assistance should be sufficient as well.  If appropriate, this claim for relief needs to be added manually to the DIY or  standardized Petition for Modification, as neither form includes it. 

A cap on arrears may provide the best relief to indigent parents, but there are few published decisions to date in which the petitioner was successful.  If you are interested in offering legal representation to a client who can assert such a claim for relief, please free feel to contact us for assistance.



Tags: child support arrears | child support | family court | support modification | garnishment





New York State Legislature Extends Settlement Conferences for Five Years

Issue Area: Consumer

The New York State Legislature last week passed crucial legislation that serves to assist homeowners facing foreclosure.  One piece of the legislation is that mandatory foreclosure settlement conferences, set to expire in early 2015, have been extended for five more years.

A settlement conference occurs in court, where the homeowner or an advocate on their behalf meets with the lawyer representing the mortgage servicer.  The statutory purpose of the conferences is to see if a mutually agreeable resolution can be reached, with both sides being obligated to negotiate in good faith, in order to avoid loss of the home.  In most cases, avoiding foreclosure entails some form of modification of the original mortgage.  In practical terms, the homeowner needs to show that they can afford the modified mortgage payments.  The servicer, in turn, is obligated to review the homeowner’s application to determine if they qualify for any modification or repayment options.  While a homeowner is in the settlement conference process, the servicer is not allowed to move forward with the foreclosure.

In the application process, the homeowner’s financial situation is established largely by submitting documents to the servicer or their representative.  While this may sound very simple, in fact the process is often very confusing and frustrating.  Before the establishment of the mandatory settlement conferences in New York’s judicial foreclosure process in 2010, the homeowner dealt directly with the servicer with no intervening “umpire,” so to speak.  There were lots of problems, including homeowners submitting documents that were often lost or not reviewed in a timely manner, the same documents being requested multiple times, or requests were made for documents that did not exist.  The homeowner had little or no recourse to counter the demands of the servicer.  Once the settlement conference was introduced, judicial oversight was added to the mix.  Now the mortgage servicer had an entity to answer to, and there exists the possibility of real world negative consequences if the homeowner is not being treated fairly.  The servicer can be fined, or the foreclosure suit can be dismissed.  At the same time, if the homeowner does not meet their obligations, the servicer is allowed to move ahead with the foreclosure process.

While the loan modification application process in the settlement conference era is far from perfect, it is undeniably more efficient and fair than the pre-conference process, which has been likened to the "Wild Wild West."  Here at Empire Justice Center, we have contact with many homeowners in foreclosure, and their experiences are very consistent.  The settlement conference mitigates the fear, confusion and frustration of the application process.  In the words of one of our clients, “Before appearing in front of the judge, dealing with the bank was like yelling at a brick wall.”

The establishment of the settlement conference has led to thousands of New Yorkers saving their homes.  In addition, they have instilled fairness into the system by establishing a consumer-friendly model for homeowners to defend themselves against foreclosure.  Prior to the conferences, the Office of Court Administration (OCA) estimated that over ninety percent of foreclosure cases ended in a default judgment against the homeowner – meaning the vast majority of homeowners had no meaningful way to either work with their servicer or to defend themselves in the legal proceeding.  In the first full year of the conferences, OCA reported that homeowners appeared in over ninety percent of the first conferences scheduled.  About one-third of New York’s civil docket is foreclosure cases, and the data available tells us that the mortgage crisis in New York is far from over, with record numbers of foreclosures still to come.  The mandatory foreclosure settlement conference will be a critical factor in helping as many New Yorkers save their homes as possible.



Tags: foreclosure | settlement conference | mortgage





LGBT Rights in Education: Recent Victories, But Our Fight Continues

Issue Area: Civil Rights

This is a dynamic time in the LGBT (Lesbian, Gay, Bisexual, Transgender) civil rights movement.  Our LGBT communities continue to gain important victories in the fight for marriage equality, but there are still many inequalities that marriage simply cannot solve.  For multitudes of LGBT people, both in New York and nationwide, discrimination, violence and harassment are a reality lived daily that cannot be ignored.  True civil rights advancement means attaining long overdue, explicit federal and state legal protections against discrimination based on sexual orientation and gender identity and expression in the central areas of our lives - such as education, employment and housing. 

That is why Empire Justice Center wants to publically applaud the U.S. Department of Education Office for Civil Rights (OCR) for its recently released written guidelines declaring that Title IX of the Education Amendments of 1972 [1] protects “lesbian, gay, bisexual and transgender students” from sex discrimination. [2]  As this statement comes directly from the federal agency charged with enforcing Title IX, it is particularly impactful.  The sheer scope of Title IX prohibits sex discrimination in any education programs or activities which receive Federal financial assistance. [3]
 
Title IX’s importance to the community of LGBT students who can rely on this directive to help attain the dignity and respect they need in the educational setting cannot be understated.  LGBT students face high rates of discrimination, violence and harassment in school - both nationally [4] and in New York. [5]  This discrimination can negatively impact LGBT people later in life.  For example, transgender people who were fired due to anti-transgender discrimination are homeless at 4 times the national rate. [6]  

These OCR guidelines follow a growing federal trend confirming that the “sex” protected status category includes gender identity and expression in both the education and employment contexts.  At least 6 federal circuits [7] and another federal agency, the U.S. Equal Employment Opportunity Commission (EEOC), [8] have issued opinions to that effect.

OCR began showing its support for LGBT students publicly as early as 2010 in a “Dear Colleague Letter” [9] and since then also entered into a Resolution Agreement requiring the Arcadia, California Unified School District to implement inclusive policies for transgender and GNC students. [10]

Despite this trend, discrimination in schools based on sexual orientation and gender identity and expression is still not explicitly prohibited in the text of any federal law.  This is another reason why it is so crucial for federal agencies and courts to continue to build a body of positive case law and guidance confirming the scope of existing laws’ application to these students.  Until the laws are amended or new LGBT-inclusive laws are finally successfully passed, Title IX will advance educational equality for these students.

Here’s the good news: though we need to continue demanding more for our nation’s students, it is now absolutely clear that anti-LGBT discrimination by a covered entity is illegal under Title IX.

To read Julia's article about other efforts on this topic, click here.


End Notes:
 [1] 20 U.S.C. § 1681(a).
 [2] U.S. Dept. of Ed Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (April 29, 2014), available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
 [3] U.S. Dept. of Ed. Office for Civil Rights, Title IX and Sex Discrimination, (June 18, 2012), available at http://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html.
 [4] J. G. Kosciw ET AL., GLSEN, The 2011 National School Climate Survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools, 90 (2012), http://glsen.org/sites/default/files/2011%20National%20School%20Climate%20Survey%20Full%20Report.pdf [hereinafter “National School Climate Survey”].
 [5] GLSEN (Gay, Lesbian, Straight Education Network), School Climate in New York (State Snapshot), 2 (2013), http://glsen.org/learn/research/local/state-snapshots (finding the majority of New York K-12 students surveyed reported being verbally harassed based on their gender identity/expression and/or sexual orientation).
 [6] Jaime M. Grant, ET AL., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3 (2011), http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf.
 [7] See Gossett v. Okla. Ex rel. Bed. Of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001) (Title VII jurisprudence is authoritative in a Title IX analysis because “courts have generally assessed title IX discrimination claims under the same legal analysis as Title VII claims”); see also  Smith v. City of Salem, Ohio, 378 F. 3d 566, 575 (6th Cir. 2004) (holding that “discrimination against a plaintiff who is a transsexual – and therefore fails to act/or identify with his or her gender” is illegal sex discrimination under Title VII); see also Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (holding that the definition of “sex” under federal non-discrimination laws includes both biological differences between men and women and failure to “conform to socially prescribed gender expectations”); see also Rosa v. Park West Bank & Trust Co., 214 F.2d 213 (1st Cir. 2000) (holding that a transgender loan applicant refused a loan because of her gender identity/expression may bring a sex discrimination claim under the Equal Credit Opportunity Act, a statute construed consistently with Title VII); see also Glenn v. Brumby, 663 F 3d at 1317 (11th Cir. 2011) (holding “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination” under the Equal Protection Clause of the U.S. Constitution’s 14th Amendment); see also Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008) (holding “gender transition” is actionable per se sex discrimination under Title VII).
 [8] Macy v. Holder, 2012 WL 1435995, at *6 (E.E.O.C. Apr. 20, 2012) (finding that anti-transgender discrimination is per se sex discrimination under Title VII of the Civil Rights Act of 1964: “Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex . . .”).   
 [9] See “Dear Colleague” Letter of Russlynn Ali, Ass’t Sec’y for Civil Rights, 7 (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
 [10] See DOE OCR, Arcadia Unified School District Resolution Agreement, 3 (July 2013), available at http://www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf.



Tags: HRL | Title IX | Transgender Rights | gender identity | Office for Civil Rights | LGBT | gender nonconforming





Happy DAP Thank You Day!


Monday, April 28th is “DAP Thank You Day.”  Since there is a possibility that some folks don’t celebrate this holiday, we thought an explanation might be helpful.  Let’s start with the basics.

What is DAP?

New York’s Disability Advocacy Program (DAP) is a nationally recognized program that generates significant savings for New York State and local governments while also providing disabled New Yorkers with a stable income stream.  Through the DAP program, local advocates provide low income disabled New Yorkers in every county with legal assistance when their federal Supplemental Security Income (SSI) or Social Security Disability (SSD) applications have been denied or benefits terminated.

When did this DAP thing start? Who does it help?

While DAP Thank You Day is a fairly recent addition to the holiday calendar, DAP has been around for a while.  DAP advocates have represented thousands of disabled New Yorkers since the program began over 30 years ago.  DAP clients are among New York’s most severely disabled adults and children—they are simply unable to navigate the complicated legal process without assistance.

If you are wondering if you know someone who has been helped by the program - yes, you probably do. While each case is unique and there is no “typical” client, an individual story can illustrate the importance of this program to the people it directly assists.

Meet Tom

Empire Justice Center’s DAP unit recently represented Tom (not his real name), a 28 year old man, who was suddenly unable to work full time.  As a child, Tom had several brain tumors requiring surgery.  As a result, he suffered a traumatic brain injury.  While the surgery saved his life, he was left with lingering effects such as learning disabilities, memory problems and seizures.  Tom’s parents were strong advocates for him during his school years.  He received special education services and eventually earned an Individualized Education Program (IEP) diploma.  Through diligent monitoring and medication management by his mother, Tom’s seizures were controlled well enough for him to obtain a job and work nearly full time at a restaurant where he was given special accommodations for his disability, including reduced production expectations and limited duties.
 
When both of Tom’s parents died unexpectedly, he was unable to adequately manage his medications on his own.  Tom’s seizures became more frequent, and his memory problems increased.  It became difficult for him to do his job; he repeatedly missed work or had to be taken off his shift, so his earnings were greatly reduced.  His utilities were shut off and he forgot to pay the tax bill on the house he inherited from his parents. Tom was in danger of becoming homeless.  Reluctantly, Tom applied for SSD benefits.  His application was denied, in great part because he continued to work as much as he was able.  Tom appealed the denial and sought help through the Disability Advocacy Program.

The DAP unit gathered medical evidence documenting Tom’s seizure disorder and contacted his employer for documentation about his increasing difficulties at work and the accommodations provided for him.  A detailed brief was submitted to the Administrative Law Judge outlining Tom’s claim.  After a lengthy hearing, the judge issued a fully favorable decision.  The decision was especially important in Tom’s case because receipt of disability benefits was a prerequisite for increased services. 

With the disability finding in hand, he applied for a supervised housing program for people with traumatic brain injuries that provides assistance with managing resident’s medications and with other daily activities including budgeting.  With the added support, Tom looks forward to getting back to work on a more regular basis.

I can see how DAP helps individuals, but how does it help the rest of us?

Despite the lack of holiday spirit displayed by that question, I’ll answer it.  Yes, there is something in it for you.

From a financial standpoint, DAP provides a great return on investment for New York State.  For every dollar invested in DAP, $3 are returned to the local municipality and state in the form of cost avoidance and interim assistance paid by the district.  Additionally, DAP clients receive millions of dollars in retroactive awards that are spent in communities around the state.  Simply put, DAP makes New York stronger.  In addition to the economic benefits just described, DAP moves individuals onto stable federal benefits, bringing much needed stability to their homes and families.
 
Why thank you? And will there be turkey on this Thank You Day?

In its recently approved budget, New York funded the DAP program at $7 million, the highest it has been funded since 2007.  On DAP Thank You Day we want to express our gratitude to all those who stepped up to the plate for our clients and for the state. This includes Governor Andrew Cuomo; leaders of the Senate Majority Coalition, Senator Dean Skelos and Senator Jeff Klein; Senate Social Services Committee Chair, Senator Tony Avella; Assembly Social Services Committee Chair, Assemblymember Michele Titus; Assemblymember Richard Gottfried; and Assemblymember David Weprin.  So, if you see any of these legislators, say “Thank you,” and tell them about DAP. 

Turkey?  Since this is a relatively new holiday, we have not yet worked out the traditional meal.  Feel free to send us your suggestions.

In the meantime, check out DAPWorks to learn more about how DAP works for New York State.



Tags: Disability Advocacy Program | DAP | disability | SSI | SSD





Principal Reductions in Mortgage Workouts are Essential to Reducing the Discriminatory Impact of Foreclosures


“Preserving an affordable home, in a stable neighborhood, for all Americans”—this phrase summarizes three key aspects of housing opportunity and the realization of the American dream.  The foreclosure crisis and the resulting recession, however, have undercut every aspect of this vision. 

Access to an affordable home with sustainable payments is out of reach for many more people today than before the crisis.  Millions of homeowners have already lost their home through foreclosure, are still at risk of foreclosure, or are stuck underwater with unaffordable mortgages as a result of the decline in housing values or lost income.  New York State alone currently has 122,544 mortgages in some stage of foreclosure, and another 197,507 that are seriously delinquent. [1] 

Moreover, due to stricter underwriting guidelines and other changes in the mortgage industry, the lower-income minority borrowers who are the potential purchasers most likely to help stabilize neighborhoods of color now have less access to affordable mortgages.

Our neighborhoods are at risk of instability and blight.  Worse yet, the neighborhoods that have seen the highest concentrations of foreclosures, resulting in higher numbers of vacant properties, are now seeing the steepest declines in housing values, putting many of these neighborhoods into a spiral of increasing instability and blight.

Rust-belt cities, like Rochester, Buffalo and Syracuse, which already had high numbers of vacant properties before the foreclosure crisis, are experiencing sharp declines in their tax bases, and may soon have to adopt triage strategies to stop the spread of blight.

The foreclosure crisis has had a disparate impact on African American and Latino homeowners and communities.   Foreclosures have not affected all homeowners and communities equally.  Since foreclosures are disproportionately concentrated in minority neighborhoods, and since all of homeowners living in those neighborhoods are impacted by foreclosures, African American and Latino homeowners are suffering disproportionately.  That’s because we live today with patterns of segregation that were established decades ago.  Because we live in segregated communities, African American and Latino homeowners are several times more likely than White, non-Latino homeowners to live in the areas most impacted by foreclosures. 

Minority homeowners either in foreclosure, or living in neighborhoods impacted by foreclosures, are suffering disproportionately from declines in housing values and neighborhood instability.

To get neighborhoods of color back on track, so they can share in the economic and housing recovery, we need to keep as many homeowners as possible in their homes.  This is especially true for the homeowners in the neighborhoods most impacted by foreclosures.

Principal reductions based on true value assessments are fair.

Requiring mortgage servicers to do principal reductions – based on the true (i.e., reduced) value of homes in impacted areas – will help us get back on track by keeping more owners in their homes, reducing  foreclosure-associated vacancies, stabilizing impacted neighborhoods, and thus reducing  the disproportionate impact of foreclosures and foreclosure-related vacancies on African American and Latino homeowners and neighborhoods.  Banks and servicers wouldn’t be losing anything, they’d just be recognizing the lost value of their assets that had already occurred.

Principal reductions must factor in the effect that HIGHER CONCENTRATIONS of foreclosures have on property values.  

True value assessments done in conjunction with principal reductions would result in a greater number of successful loan modifications and keep more owners from losing their homes.  But to do true value assessments, the impact of higher concentrations of foreclosures must be taken into account.  Neighborhoods with high concentrations of foreclosures [2] can be readily identified [3] and property valuations can be adjusted fairly.  If we fail or refuse to do principal reductions that take into account the greater drops in home values created by concentrations of foreclosures, it will be African American and Latino homeowners and minority neighborhoods as a whole who suffer. [4]

We can address the problem of concentrated foreclosures by urging federal policy makers to act.  The Federal Housing Finance Agency, the agency that oversees Fannie Mae and Freddie Mac, needs to begin to not only allow, but to require mortgage servicers to do principal reductions.  Congress needs to pass legislation requiring principal reductions and true value assessment.

Let’s make minority homeowners and communities of color equal participants in the nation’s housing recovery.


End Notes:
 [1] Empire Justice Center estimate using data from the CoreLogic, “National Foreclosure Report,” December 2013, as found at http://www.corelogic.com/research/foreclosure-report/national-foreclosure-report-december-2013.pdf.
 [2] Note, however, that zip code foreclosure totals alone are not sufficiently accurate for this purpose. For example, a suburban zip code with 350 foreclosures is not impacted as severely as an urban zip code with the same number of foreclosures, but which is 1/43 the size. (This is an actual example based on zip codes 14619 and 14580 in Monroe County, NY). Instead, the rate of foreclosures and geographic density should be taken into account. That can readily be done at the census tract level.
 [3] Empire Justice Center did this on Long Island. See our report.
 [4] These findings are based upon a data analysis conducted by the Empire Justice Center in New York State which included an evaluation of all foreclosures initiated in Rochester NY since January 1, 2009, mapping the foreclosures and linking the court records for each property to the city’s property information database, as well as census demographics for minority homeowners, in order to evaluate the characteristics of properties in foreclosure including location, concentration, case status, vacancy status and changes in ownership. 



Tags: foreclosure | minority homeowners | African American | Latino | neighborhoods of color | principal reductions | housing opportunity | FHFA