Zwiren Title Agency, Inc - ZTA Blog #Real Estate Attorney

Lawyer Well-Being

Tue, 28 Feb 2023 13:05:00 -0500

Lawyer Well-Being
& the Necessity for A Legal Industry Culture Change

Well-being is a priority for lawyers that can no longer be ignored. The National Task Force on Lawyer Well-Being acts on behalf of the lawyers who are functioning below their ability and for those suffering due to substance use or mental health disorders and the Task Force urges people to act.

It has been estimated that the average person will spend one third of their life at work. The American Bar Association (ABA) published a study of nearly 13,000 currently practicing lawyers that found between 21-36% qualify as problem drinkers and 28% are struggling with some level of depression, 19% struggle with anxiety and 23% struggle with stress. Notably, the study found that young lawyers in the first 10 years of practice and those working in private firms experience the highest rates of problem drinking and depression. Too many individuals face less productive, less satisfying and more troubled career paths. The result of the study signals an elevated risk in the legal community for mental health and while the study reflects the majority of lawyers do not have a mental health or substance use disorder, it does not mean the lawyers unaffected are thriving.

What is Well-Being?

Well-being is not solely defined by the absence of illness; it includes a positive state of wellness. Social science research emphasizes that well-being is not defined by an absence of disfunction or illness but is also not limited to feeling happy or filled with positive emotions. The concept of well-being is multi-dimensional and includes, for example, engagement in interesting activities, having close relationships and a sense of belonging, developing confidence through mastery, achieving goals, meaning and purpose, a sense of autonomy and control, self-acceptance, and personal growth.

Lawyer well-being can be further defined as a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health and social connections with others. It is a continuous process towards thriving across all life dimensions. Lawyer well-being is part of the lawyer’s ethical duty of competence. It provides a lawyer the ability to make healthy, positive work/life choices and assure not only a quality of live within their families and communities but also to help them make responsible decisions for their clients.

Reasons to Take Action:

1. Lawyer well-being impacts the cognitive function and contributes to organizational success in law firms, corporations and government entities. When cognitive function is impaired, legal professionals are unable to do their best work. For law firms and corporations, lawyer health is form of human capital that provides a competitive advantage. The Gallup Corporation did years of research showing that worker well-being in the form of engagement is linked to a host of organizational success factors, including low turnover, high client satisfaction and higher productivity and profitability. The research also shows that 68% of employees are not engaged at work, which means organizations are not benefiting from their human capital. A 2016 survey by Law360 found that over 40% of lawyers reported they were likely to leave their current law firms within the next year. The high turnover rate for law firms is expensive; however, could be mitigated by improving employee well-being in an engaging way.

2. Lawyer well-being influences ethics and professionalism. The ABA Model Rules of Professional conduct have several rules that are relevant to lawyer wellness. Rule 1.1, “provide competent representation” Rule 1.3 requiring diligence in client representation, Rules 4.1 through 4.4 regulate working with people other than clients. Minimum competence is critical to protecting clients and allows lawyers to avoid discipline but will not enable them to live up the aspirational goal articulated in the ABA’s Model Rules of Professional Conduct’s Preamble, which calls lawyers to “strive to attain the highest level of skill to improve the law and legal profession and to exemplify the legal profession’s ideals of public service. A lack of well-being causes lawyers to struggle with even minimum competence. D. B. Marlowe, author of “Stress Management for Lawyers”, suggests that 40-70% of disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, often both.
Major depression is associated with impaired executive functioning, including diminished memory, attention and problem-solving. Well-functioning executive capabilities are a necessity for making good decisions, evaluating risks, planning for the future, and coping with new situations. Further, some cognitive impairment persists in up to 60% of individuals with depression even after mood symptoms have diminished. For alcohol abuse, up to 80% experience mild severe cognitive impairment in executive functions, especially when problem solving, abstraction, planning, organizing, and working memory, core features of a competent lawyer.

3. Promoting well-being is the right thing to do. Untreated mental health issues and substance use disorders ruin lives and careers. They affect too many lawyers and it is clear the collective legal culture is toxic or sustaining is up to the individual. The interdependence creates a joint responsibility for solutions.

Recommendations

The Task Force for Lawyer Well-Being has published their recommendations for minimizing lawyer dysfunction, boosting well-being, and reinforcing the importance of well-being to competence and excellence in practicing law. The report is split into two main parts, Part 1 provides general recommendations for all stakeholders in the legal community and part 2 provides recommendations tailored to specific stakeholders, such as judges, regulators, legal employers, bar associations, etc. Some of the recommendations include:

Leaders demonstrate personal commitment to well-being. Broadscale change requires a buy-in role modeling from top leadership.
Facilitate, destigmatize, and encourage help seeking behaviors.
Build relationships with Lawyer Well-Being experts,
Foster collegiality and respectful engagement throughout the profession.
Provide high-quality educational programs about lawyer distress and well-being.
Guide and support the transition of older lawyers.
De-emphasize alcohol at social events,
Utilize monitoring to support recovery from substance use disorders.
Take actions to meaningfully communicate that Lawyer Well-Being is a priority.
And many more!

The Task Forces’ report and recommendations make a compelling case that the legal profession is due for some new ideals. Depression, anxiety, chronic stress, burnout and substance use disorders among lawyers exceed those of many other professions. To preserve the public’s trust and maintain the status of a self-regulating profession, the legal industry must come together with the commitment to care for the well-being of one another. Regardless of the position each individual holds in the legal industry, everyone can contribute towards making a difference in the culture change by considering their own well-being and that of one another. The legal profession has the capacity to face these challenges and create a better future for lawyers that is sustainable in pursuit of the highest professional standards, business practices and ethical ideals.

More information on how you can contribute can be found in the National Task Force on Lawyer Well-Being’s report, “The Path to Lawyer Well Being: Practical Recommendations for a Positive Change”, which can be found on the American Bar Association’s website or on Google.

Here is our message to you -

If you need our help, just call and let us know, no questions asked. We cannot take over a file for a lawyer, but we can and have been there for our clients when they are out on a family emergency, or are on vacation. Even if you are overwhelmed for any number of reasons or really need some extra support on your transactions to allow you some space to relax, just let us know. We can talk and figure out how our office can help keep the transaction moving forward and/or support you and/or the transaction in other ways.

Discharge of Mortgage by Affidavit of Payment

Fri, 30 Sep 2022 15:45:32 -0400

Discharge of Mortgage by Affidavit of Payment
N.J.S.A. 46:18-11.7

Discharging a mortgage of record is an integral part of the post-closing process for clearing a title. After receiving payment in full, an owner or holder of mortgage is legally required by N.J.S.A. 46:18-11.2 and N.J.S.A. 17:11C-34d;-82f(3) to have a mortgage canceled of record within 30 days of satisfaction; however, there are instances when a holder of mortgage does not complete their duty, for reasons unbeknownst to us. When a mortgage remains on record 30 days after satisfaction and the holder of mortgage is unresponsive, there is an alternative method of discharging the mortgage, for a residential mortgage. The NJ legislature enacted N.J.S.A. 46:18-11.7: Conditions for a Discharge, Satisfaction on the Record, to allow an attorney-at-law or licensed title insurance producer who has caused the residential mortgage to be paid, to secure its discharge.

The process to discharge a mortgage by affidavit begins when a mortgage is still on record 30 days after the payoff is received. According to Title 46 Section 46:18-11.2c, if the final payment is made via certified check or cashier’s check, the mortgage will be deemed paid upon receipt of the check by the mortgagee. If the mortgage has not been canceled of record, a notice may be sent to the lender advising them of the intention to cause the mortgage to be discharged by affidavit. The notice must be sent by certified mail with a return receipt. The return receipt informs the day that the lender received the notice. The lender has 30 days from receipt of the notice to discharge the mortgage.

A second notice is sent to the lender if the mortgage is still on record 30 days after receiving the first notice. The second notice to the holder of mortgage will reiterate the intention to discharge the mortgage by affidavit. This notice must also be sent by certified mail with a return receipt. The lender has 15 days from receipt of the second notice to discharge the mortgage.

If 15 days elapse after the lender receives the second notice and the mortgage is still on record, an affidavit of payment can be used to discharge the mortgage. The affidavit is a statutory form and must state the following:

The payment was made to the lender in accordance with a current, written payoff letter
The affiant knows the lender received the payment
A notice was sent to the lender by certified mail, at least 30 days after the payment was received
A second notice was sent to the lender by certified mail at least 30 days after the first notice was received
At least 15 days have elapsed since the lender received the second notice; and
The affiant directs the county recording officer to discharge the mortgage of record and put a marginal notation on the original record of the mortgage

The affidavit must be accompanied by a discharge prepared by the affiant. Section 46:18-11.7.3a of the act appoints the affiant as the agent or attorney-in-fact for the owner or holder of the mortgage, for the purpose of executing the discharge. Once the discharge and affidavit are notarized, they can be sent to the county recording office with a recording cover sheet and appropriate recording fees for recording.

While the discharge by affidavit of payment statute is a supplement to the existing statutory procedure regarding mortgage cancellations, it has been effective in discharging mortgages when lenders have, for whatever reason, forgotten to cancel a residential mortgage of record.

- Paula Zwiren

Are You Updating Your Passwords Regularly

Wed, 29 May 2019 12:09:15 -0400

News You Can Use

April 22 it was reported that Facebook recently realized they were accidentally storing hundreds of millions of Instagram users passwords, without any encryption, on an internal server for the past seven years. These passwords were accessible to over 20,000 Facebook employees. While there has fortunately been no identified misuse of the unencrypted Instagram passwords, if Facebook had been hacked within the past 7 years, the hacker would have had hundreds of millions of Instagram user login credentials at their fingertips. Security Boulevard’s 2018 poll of individuals around the world found that 59% of people use the same password for everything. While a hacker with an Instagram password may not be able to steal money or an identity with that information, there is a likely chance the user has the same password for many other accounts, such as their online banking, personal or work email, etc.

The fact that password security is in the news again, stresses the need for individuals to practice safe password habits.This is why it is incredibly important for users to practice safe password habits, such as creating unique passwords for every online account and updating those passwords periodically. This is especially important when working in the real estate industry and dealing with large sums of money on a daily basis. As much of a hassle it is to remember numerous passwords, update them, and then memorize the new passwords, it is really the simplest method for keeping your accounts secure from hackers or identity thieves.

One great example of hackers taking advantage of users reusing the same passwords is the recent “sextortion” email scam. Millions of people received an email that began with “I am aware that is your password”. The rest of the email proceeds by stating the sender has hacked the user’s computer recorded them while viewing inappropriate videos online with the computer’s webcam. The sender threatens to send the video to the user’s entire contact list unless a $1400 bitcoin ransom is paid within 24 hours. As of July 2018, the hackers have already made $50k from this scam.

This sextortion scam is tied to a LinkedIn breach from 2012 where over 100 million users’ passwords and private information was stolen. While the stolen information was used to scam users into sending money to the hackers, the stolen information has most likely been sold on the dark web to other hackers who plan to use the information for other scams and hack-tivities (i.e. identity theft).

91% of people are aware of the necessity for better password security, yet a majority of people prefer the convenience of a password they can remember over their account security.It is important to keep in mind, hackers are working 24/7 to compromise individual and corporate user accounts. Every time someone uses the same password for multiple accounts, they are making a hacker’s job easier and those accounts less secure.

Methods for Storing Passwords

There are a few methods that can help users create unique passwords and store them in a convenient method so they will not forget. My personal method is to hand write my passwords and login details in a password book (which looks a lot like an address book). This book can only be compromised if a hacker physically steals the book from me. For those who prefer a digital method for storing passwords,there are several applications that can be used, one of which that comes recommended is called “LastPass”.

LastPass is a free password vault and password generator. It uses multi-factor authentication,which means that in order to log in, your LastPass password is entered as the first form of authentication. Then, a second and maybe third measure is used, such as TouchID or FaceID, or a one-time code, that is texted to your cell phone or specified email address, must be entered to login. Once the user logs in, they can store their passwords within the application’s “vault”. The stored passwords are encrypted using a randomly generated key which is provided to the user; however is never shared with Lass Pass. This ensures the stored passwords are never accessible to Last Pass. Therefore, if Last Pass is ever hacked, the hackers will not be able to gain access to user passwords, as they do not have user’s encryption key.

In addition to Last Pass, PC Mag recommends Dashline, Keeper Password Manager and Digital Vault, and LogMeOnce have been reviewed as some of the best password management software of 2019. Click the button below to read further about how a weak password will get you hacked, along with 15 tips for better password security from McAfee Security's blog.

-Emily Comora

The Importance of Real Estate Attorneys

Wed, 29 May 2019 12:02:55 -0400

Written by Paula M. Zwiren, JD, MBA

Real property buyers frequently call and ask if they really need an attorney in order to buy a piece of property. My response is always “I could not personally imagine buying such a large investment without a specialist reviewing, understanding and explaining the entire transaction to me. Even I, an attorney who owns a title agency, use a separate attorney when buying real estate.” An attorney is the only true advocate with no conflict of interest that sees the entire integrated picture of the transaction and the property.

As an attorney, you probably hear the same question from buyers calling you to inquire about your legal services. I offer you the following four stories which illustrate the importance of using an attorney and allowing the attorney to complete the review process before proceeding with the purchase.

INADVERTENT FENCE STEALING

An acquaintance of mine recently bought a house in a state where it is not common to use an attorney for a residential real estate purchase. At the closing, a service provider (ie, lender, realtor, title person) told her that the fence was mistakenly placed on the neighbor’s property and that service provider arranged for the fence to be moved. The fence was successfully moved. However, two days later, an elderly couple who recently put the fence correctly on their own property was at her door asking why she stole their fence. My friend had to pay to move the fence back onto the neighbor’s property. I am certain this would have never happened had she consulted with an attorney, as the attorney would have suggested ways to confirm ownership of the fence prior to moving it.

OPEN LIEN

An attorney client of mine was retained by a buyer who won a bid at Sheriff’s sale and put 20% down. The attorney advised she would order title and let her client know what the search revealed, including easements and restrictions, as well as to confirm the foreclosure wiped out all other ownership and/or lien interests. Immediately after ordering title, the buyer paid the Sheriff off, thereby completing the purchase. During our review a few days later, we noticed the foreclosed mortgage was recorded in the wrong county initially and another mortgage was put on before the foreclosed mortgage was recorded. Therefore, the foreclosure was of a second mortgage, which was meant to be a first lien. We called the attorney before even issuing the title commitment and thereafter found out that the buyer said someone said something about another mortgage at the time of sale, but that he didn’t understand. While in this case, the buyer hired an attorney, he still completed the purchase before obtaining her counsel and was stuck with the property and its liens.

BULK SALES

In F. Bradford Batcha’s article in the Real Property, Trust and Estate Law Section Newsletter this month, he points out that there remains a limited amount of transactions where a one- or two-family property is subject to the bulk sales notice requirements. Specifically, sellers who are LLCs and corporations who do not meet the ordinary course of business exemption. Given that the real estate practice commonly does not involve real estate attorneys in southern New Jersey, he states that the danger to an innocent unrepresented home buyer might be cause for consideration in updating the law in this area to protect them. I concur. Unless the law is changed, bulk sales requirements continue to be a reason that a buyer should retain an attorney to represent them in a purchase transaction.

CLOSING TABLE DISRUPTION

A seller’s realtor created over an hour delay at the closing table by insisting the parties do not close until the title company removes the charge for an ALTA 9 series endorsement and accused us of stealing and overcharging the buyer. In Pennsylvania,the ALTA 9 series is a percentage of premium charge, which is often much more than the New Jersey charge of $25.00. The residential lender on the transaction required the ALTA 9 series endorsement and did not accept the Pennsylvania form endorsement often used in its place. We sent over a copy of the lender's attorney review letter and various forms that showed it was a lender requirement and that we, as the title company, did not have the authority to override the lender’s requirements. In order to get through the closing, I had to call management at the large real estate firm the realtor was from and advise them of the situation at the table. The realtor’s manager contacted the realtor about the matter and the closing continued to completion. Had an attorney been retained by either buyer or seller, this closing delay and slightly traumatic disruption at the closing table would have not lasted more than one minute.

-Paula M. Zwiren

Commercial Transactions

Thu, 11 Apr 2019 12:58:14 -0400

Written by Paula M. Zwiren, JD, MBA

Avoiding surprises is a critical element for success in any investment. When a title company performs its services it can act proactively for the investor to avoid surprises.

Competency is the baseline service that a title company needs to earn a seat at the commercial closing table. However, investors need a title company with a special proactive view of the deal, where nuances are predicted early enough to help avoid disturbing the relationship of the parties. At ZTA, our competency level runs deep, with a long track record of successful commercial deals where the nuances were identified and handled before reaching the closing table.

Managing and negotiating a real estate contract and a closing is sometimes an art. Viewing it as a series of checklists and requirements neglects the human component of the transaction. The difference between a buyer discovering an issue that could cause delay early in the contract lifespan vs. right before closing has incredible impact in making sure the deal does not blow up before closing.

As a title company, we work to take the stress off the buyer and their service team by having our head in the game with them, even when it strays slightly outside of title insurance policy we are providing; we are a player on the team and contribute by keeping track of key items such as survey revisions for the lender. This is done simply by paying attention and making sure nothing slips through the cracks.

To make this tangible, we can use a few simple samples from a recent transaction sample.

♦ Historical Data: During the due diligence, a tideland grant was recorded in the land records. Since the grant was obtained as a result of the sellers making a title claim with their insurance carrier, they were not aware of all of the details. The grant referenced a 4-year-old survey, which was sure to have recent and historical markings that would be important for the buyer to have in its records due to the proximity to a water course and changing nature of the boundaries. We tracked down the 2014 survey with diligent ego-free stalking of the parties that had a copy and were able to obtain it for the buyer’s records. In all likelihood, this will illustrate historical data for the buyer, if and when environmental regulating bodies-present a challenge in the future.

♦ PZR Zoning Report: Although the endorsement requests by the lender are not finalized during the initial study period of the contract, we request information and documents we might need to underwrite in order to provide the commercial lender frequently requested endorsements. Therefore, the PZR Zoning Report was presented to us early during due diligence to rely on in issuing the Zoning Endorsement. The content of the PZR report meets our needs for issuing the Zoning Endorsement. However, it was missing an additional and very different use of one of the buildings on the large tract of land. The secondary use is mentioned in the contract,so the lender’s counsel would likely notice it once they dig in and do a deep dive into all the transaction documents. We notified the buyer of what we noticed, so they could get ahead of this is a last-minute glitch slowing things down and also make sure the use is grandfathered in or permissible by zoning variance.

♦ No Easement for Neighbor’s Use: Apparent use of the subject property by the neighbor based on driveway curb cut, although there is no easement of record for said use. Our service option is to see it, set it up as an exception in general terms and then let the buyer’steam discover (or not discover) this as they read through the materials and examine the survey. The other option,which is how we manage our files, is to send a separate email and just note that it looks like the neighbor’s driveway is paved in one location to get directly onto our driveway, but there is no easement for it in the records. Early on in the diligence period, the buyer was able to determine whether they want to request the seller to coordinate an easement with terms, rights and obligations, before the buyer is the owner of the property.

Commercial transactions are quite complex as a whole. It is important to take the necessary steps to break the transaction down into smaller parts and identify the details to better serve investors. It is always a pleasure to work with counsel in serving these types of transactions. If you have any transactions with some interesting nuances to them, we are happy to brainstorm with you regarding solutions.