To succeed in contesting a deed transfer, you musth have and be able to prove evidence of at least one of the following grounds:
- Lack of mental capacity
- Undue influence
- Constructive trust
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Contesting a deed transfer involves two major components.
First, there must be a ground for rescission. Rescission just means that the court cancels the contract, the parties are restored to their previous status prior to the execution of the contract, and whatever anyone received by virtue of the contract is returned to the other party.
Second, the lawsuit must be filed within the statute of limitations. The statute of limitations refers to a period within which a claim must be filed with the court. If a claim is not filed within this time frame, the claim is barred. The period for the statute of limitations depends on the ground for contesting the deed transfer.
For example, the statute of limitations for fraud is 6 years from the date the cause of lawsuit accrued (which is essentially the date when the fraud was committed against a person) or two years from the time the plaintiff discovered the fraud or could with reasonable diligence have discovered it. New York Civil Practice Law and Rules (CPLR) § 213(8).
To illustrate, in 2019, John signed a deed transferring his house to his friend, Martha, in exchange for shares of Martha’s company that allegedly owned a 5-storey apartment building in Manhattan. In 2020, one year after signing the deed of transfer of his house to Martha, John died. Upon John’s death, John’s son and executor, Louis, discovered that the company whose shares were transferred to John did not actually own the 5-storey apartment building, but in fact, was merely leasing it from another company. Louis, as personal representative of John’s estate, filed a lawsuit contesting the deed transfer, to cancel the transfer and return the house to the estate. Will the court entertain the lawsuit filed by Louis against Martha? Yes, because the lawsuit was filed one year after the signing of the deed, which is within the statute of limitations’ 6-year period or 2-year period from discovery.
Distinguishing between void and voidable deeds
An important (although somewhat technical) aspect to consider in contesting a deed transfer made by a person who died is whether the deed is void or voidable.
A void deed transfers no rights; it is illegal from the beginning, it cannot be ratified, and it is not subject to the statute of limitations. A void contract generally lacks the element of mutual assent that is required in a valid contract. Without the element of mutual assent, the contract is not perfected or formed. An example of a void contract is a forged deed. In a forged deed, the other party absolutely did not consent because the signature was forged. Thus, a forged deed is not subject to the statute of limitations and can be questioned at anytime. A forged deed will never be time-barred despite the passage of time. Faison v. Lewis, 25 N.Y.3d 220 (2015).
A voidable deed, on the other hand, is valid, but can be voided at the option of the victim. Restatement (Second) of Contracts § 175 (1) (1981). A voidable contract can also be ratified by the victim’s acquiescence to the contract’s terms or receipt of the contract’s benefits. Benjamin Goldstein Prods., Ltd. v. Fish, 198 A.D.2d 137 (1993). A voidable contract is always subject to the statute of limitations. An example of a voidable contract is a contract executed due to fraud, duress, or undue influence. In a voidable contract, the element of mutual assent is generally procured through some wrongful act.
In the example above, John’s signature was procured by Martha through fraud because Martha represented to John that her company owned a 5-storey apartment building in Manhattan. Martha knew this representation was false because her company was, in fact, only leasing the building. Thus, the contract is voidable, and its rescission is subject to the statute of limitations.
Suppose, however, that Martha forged John’s signature in the deed and John did not die until seven (7) years later. Even if John’s executor, his son Louis, files the lawsuit for contesting the deed transfer against Martha in 2027, the lawsuit cancelling the forged deed will still be entertained by the court because it is not subject to the statute of limitations. A forged deed is void ab initio and does not transfer any rights.
Grounds for rescission of a deed
Rescission is an equitable remedy. It is not available when the parties cannot be restored to their original status or when damages are available. The court, in Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher, 299 A.D.2d 64, 71 (2002), explained the concept of rescission:
“The equitable remedy of rescission “is to be invoked only when there is lacking complete and adequate remedy at law and where the status quo may be substantially restored” (Rudman v Cowles Communications, 30 NY2d 1, 13 [citation omitted]). Generally, a party cannot rescind a contract if that would injure the party against whom rescission is sought because, under the contract, that party has changed his position and cannot be returned to the status quo ante (see Gravenhorst v Zimmerman, 236 NY 22, 34-35; Kamerman v Curtis, 285 NY 221, 226). For instance, where restoration of the status quo ante is made impractical by a substantial change of position (see Rudman v Cowles Communications, 30 NY2d at 13-14 [plaintiff not entitled to rescission where damages appear adequate and it is “impracticable to restore the status quo, the assimilation of plaintiff’s company being complete”]), or by the nature of the transaction at issue (Tarleton Bldg. Corp. v Spider Staging Sales Co., 26 AD2d 809[rescission unavailable where transaction involving installation of facilities designed for particular building did not lend itself to restoration of status quo]), the remedy of rescission will not be available.”
The grounds for rescission are mutual mistake, lack of capacity, duress or undue influence, and innocent or fraudulent misrepresentation.
Mutual mistake means that both parties “shared the same erroneous belief as to a material fact, and their acts did not in fact accomplish their mutual intent.” ACA Galleries Inc. v. Kinney, 928 F.Supp.2d 699 (2013). Mutual mistake renders a contract voidable and subject to rescission. The mistake must refer to a fact and not of law, must be substantial, and must exist at the time of contract execution. Sometimes, a unilateral mistake may be a ground for rescission if it would result in the unjust enrichment of defendant. In the Matter of Gould v. Board of Educ., et. al., 81 N.Y.2d 446, 453 (1993). In order to rescind a contract based on unilateral mistake, there must also be an allegation of fraud or wrongful conduct. National Union Fire Ins. Co. v. Walton Ins. Ltd., 696 F.Supp. 897 (1988).
New York courts have held that failure to investigate prior to the execution of a contract can be a bar to rescission based on mutual mistake. For example, an owner, who thought he was selling a rent-stabilized apartment that was occupied with a tenant and sold such property with a selling price based on such occupancy, cannot rescind the contract when the tenant died prior to the execution of the contract, making the apartment more valuable. The owner should have investigated his own property before the sale. Mutual mistake is not available to rescind this contract. P.K. Dev., Inc. v. Elvem Dev. Corp., 226 A.D.2d 200, 201, 640 N.Y.S.2d 558 (1st Dep’t 1996).
The statute of limitations to rescind the contract based on mutual mistake under CPLR § 213 (6) is 6 years from the time the cause of lawsuit accrued (which is the date of the transaction). The statute of limitations to rescind a contract based on unilateral mistake with an allegation of fraud under CPLR § 213 (8) is the greater of 6 years from the date the cause of lawsuit accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud or could with reasonable diligence have discovered it.
In the example above, suppose that John, instead, sold a portion of his property to his neighbor, Martha, under the impression that such portion was only 3 acres. Martha was also under the same impression that she was buying 3 acres. An official from the local county prepared the description of the property in the deed. John died one year after the sale. John’s son and executor, Louis, was making an inventory of John’s property, had the property surveyed, and subsequently discovered that what was sold to Martha was, in fact, 15 acres and not 3 acres. Louis, as personal representative of John, sued Martha for rescission. Will the claim prosper? Yes, because there was mutual mistake on the part of Martha and John, who both believed that what was being sold was 3 acres, and the claim was filed within the period of the statute of limitations. See D’Antoni v. Goff, et. al., 52 A.D.2d 973 (1976).
Suppose that John died 7 years after the transfer and Louis only learned about the disparity in acres then, will Louis’ rescission claim against Martha prosper? No, because it is barred by the 6-year period of the statute of limitations.
Duress involves a wrongful act or threat that precludes a person from exercising free will. In duress, a person is compelled to execute a contract on the basis of a wrongful act or threat. Duress renders a contract voidable and is a ground for rescission. If the threat is legal or the threat involves an act which a person is justified in doing or is his legal right to do, there is no duress. For example, if the threat involved a father withdrawing financial support to his adult daughter, there is no duress because the father had no legal obligation to support the daughter anymore. Kazaras v. Manufacturers Trust Company, et. al., 4 A.D.2d 227 (1957). Mere fear in one’s mind without any external wrongful conduct on the part of the defendant is not duress. Smith v. Jones, 76 Misc.2d 656 (1973).
There are two types of duress: physical and economic. Physical duress involves the threat of physical harm. Economic duress involves the threat of economic harm. An example of physical duress is a battered wife, who has suffered physical abuse in the hands of the husband and who has been forced to sign a release of the marital property in favor of the husband. Polito v. Polito, 121 A.D.2d 614 (1986). There is economic duress when the first party forces the second party to sign a contract under the threat that the first party will withhold performance on another contract, which withholding of performance would cause irreparable financial harm and economic injury to the second party. The mere threat to breach an agreement and/or withhold performance will not constitute economic duress if the threatened party can obtain performance from some other source and the ordinary remedy of a lawsuit for breach of contract would be adequate. Austin Instrument v. Loral Corp., 29 N.Y.2d 124, 130-131 (1971); see also Sosnoff v. Carter, et. al., 165 A.D.2d 486 (1991).
For example, if a supplier refuses to deliver the goods unless the buyer pays a higher price and awards a second subcontract to the supplier, there is no economic duress if the buyer could get the goods from another party within a reasonable time. However, if the threat was made too close to delivery time that the buyer would not meet his deliverables with a client, which would then subject the buyer to liquidated damages, and there was no possibility of the buyer getting the goods from another party at a reasonable time, there can be economic duress. Austin Instrument v. Loral Corp., supra at 131-33.
The period to rescind the contract for undue influence and duress is 6 years under CPLR § 213 (1). However, this period is tolled when the duress or undue influence is continuing. The statute of limitations period only begins when the duress or undue influence has ceased. Sosnoff v. Carter, supra at 492.
Physical duress renders a contract void because there is no manifestation of assent. With no manifestation of assent, there is no formation of a perfected contract. Restatement (Second) of Contracts § 174 (1981); see also Norton Operating Servs. Inc. v. Perry, 175 A.D.2d 916 (1991). A void contract is not subject to the statute of limitations and may be questioned anytime. Economic duress, on the other hand, only renders the contract voidable at the option of the victim and may be ratified by the victim’s acquiescence or acceptance of the contract’s benefits.
Suppose in the example above that John transferred the property to Martha because Martha held a gun to his head. This is physical duress. No contract was formed because of the absence of mutual assent. The contract is void and not subject to the statute of limitations.
Let’s assume, on the other hand, that John and Martha signed a partnership agreement where they were going to buy an apartment in Brooklyn for $500,000 and rent it out. John already paid the downpayment of $250,000 with the understanding that Martha would put in the other $250,000. If they didn’t continue with the purchase, John would lose his downpayment. The day before closing, Martha told John that she would only put in the $250,000 if John transferred his house worth $750,000 to Martha. John tried to look for other partners, but because of lack of time, could not find anyone who had the capacity and would invest. John transferred his house to Martha. He died one year after the transfer. His son and executor, Louis, discovered this transfer, and filed a lawsuit against Martha to rescind the transfer of the house due to economic duress. Will the rescission be entertained by the court? Yes, because it was filed within the 6-year period required for duress.
Suppose that John died 7 years after transferring his house to Martha and his executor, Louis, filed the lawsuit for contesting a deed transfer then, will the complaint prosper? No, because the claim was filed beyond the 6-year period for the statute of limitations.
Undue influence, as opposed to duress, is broader in scope and is not limited to an illegal act or threat. Undue influence involves an advantage sought and obtained by an actor or another person who has an interest in the matter. A finding of undue influence “requires a showing that the influence exercised amounted to a moral coercion, which restrained independent lawsuit and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his or her free will and desire, but which he or she was unable to refuse or too weak to resist.” In the Matter of Favaloro, 94 A.D.3d 989 (2012).
For example, the transfer of all assets of a person, including assets he owned and inherited from his family prior to the marriage, to his spouse after a stroke that left him housebound and dependent on his spouse to manage their day-to-day finances and giving her control over essentially all of his assets, may constitute undue influence that can entitle him to rescind all documents and trusts he executed that transferred his assets to her, especially when such spouse filed for divorce against him after transferring all the assets to her. Hearst, Jr. v. Hearst, et. al., 50 A.D.3d 959 (2008).
In the example above, suppose instead that Martha was John’s live-in caretaker and John depended on Martha for all his daily needs from taking a bath, changing his clothes, and eating. Martha was well-compensated as John’s live-in caretaker. Martha told John that John’s children were ungrateful for not visiting him often and leaving him alone when he needed their assistance. Martha told John that it would be in John’s best interest if he transferred the house to her so that his ungrateful children would not inherit anything substantial. John, at this time, was weak after suffering from a stroke, was physically disabled, and was under heavy medication. Martha organized the attorney who drafted the contract that would transfer the property from John to Martha, provided the witnesses, and secured the services of the notary public for John to acknowledge the document. Martha stayed with John as his live-in caretaker until his death. John died seven years after transferring the house to Martha. John’s son and executor, Louis, then learned about the transfer and sought to rescind the contract. Will Louis’ contesting a deed transfer claim prosper? As a general rule, the contesting a deed transfer claim should be filed within 6 years from the time of the transaction. In this case, Louis’ contesting a deed transfer claim would be time-barred due to the statute of limitations since it is 7 years after the transfer. However, if Louis can show that Martha exerted undue influence upon John, and such undue influence continued until John’s death, then the period for the statute of limitations is tolled and would only begin during John’s death. Thus, Louis’ contesting a deed transfer claim will still be entertained by the court because the 6-year period would be counted from the date of John’s death.
Innocent or Fraudulent Misrepresentation
Both innocent and fraudulent misrepresentation can be grounds for contesting a deed transfer.
In innocent misrepresentation, there is a misrepresentation to the other party, and such misrepresentation is false, material and relied upon, inducing the other party to enter into the contract. In innocent misrepresentation, the party making the misrepresentation is not aware that such representation is false. Seneca Wire Mfg. Co. v. Leach Co., 247 N.Y. 1 (1928). Innocent misrepresentation is similar to mutual mistake. West Side Fed. Savings v. Hirschfeld, et. al., 101 A.D.2d 380 (1984).
For example, a lessee is induced to enter into a lease contract with a mall operator because the sales managers of the mall told the prospective lessee that all spaces of the mall were already fully leased and that the tax was $1.25 per square meter. In reality, not all spaces of the mall were fully leased until after 1 year, and the real property tax of the mall was pegged at $2.50 per square meter, instead of $1.25 per square meter. Even if the sales manager did not know at the time he made the representations to the prospective lessee that these were false, he was in a position of superior knowledge than the lessee and he had implied that he knows facts which support his opinions regarding the occupancy and tax rate. For this reason, even if the misrepresentation was innocently made, the lessee can still rescind the contract. Magnaleasing, Inc. v. Staten Island Mall, et. al., 428 F.Supp. 1039 (1977).
In innocent misrepresentation, the defendant makes the misrepresentation recklessly, not knowing whether it is true or false and not caring what the fact might be, paying no heed to the injury which might ensue. In innocent misrepresentation, although there can be no lawsuit for fraud or deceit, the contract may still be rescinded. In fraudulent misrepresentation, on the other hand, the defendant must have known when he made the representation that it was false. Kountze v. Kennedy, 41 N.E. 414 (N.Y. 1895).
In innocent misrepresentation, the period to rescind the contract is 6 years from the time to the cause of lawsuit accrued. In the example above, it is counted, not from the time of misrepresentation, but from the time that the lessee was charged more than $2 per square meter for the tax of the leased premises, because it was at this time that the misrepresentation materialized. For fraud, on the other hand, the period to rescind the contract under CPLR § 213 (8) is the greater of 6 years from the date the cause of lawsuit accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud or could with reasonable diligence have discovered it.
Fraudulent misrepresentation refers to a representation made by one party to another, inducing the other to enter into a contract, knowing that the representation was false. There are two types of fraud: fraud in factum which renders a contract void and fraud in inducement which renders the contract voidable. The court, in Mix v. Neff, 99 A.D.2d 180, 182 (1984), distinguished between the two types of fraud for purposes of contesting a deed transfer:
“This argument underscores a complex dichotomy in the case law which makes a distinction between fraud in the factum (or quantum) (Gilbert v Rothschild, 280 N.Y. 66, 72) and fraud in the inducement. The burden of proof differs in each of these instances. Fraud in the factum generally connotes an attack upon the very existence of a contract from its beginning, in effect alleging that there was no legal contract and that the instrument never had a valid inception. The attack is upon certain facts which occurred at the time of the alleged execution of the agreement, upon which facts the validity of the agreement depends. For example, the claim could be that the signatory signed an instrument different from that which he understood it to be. In such case, the instrument would be void ab initio (supra, at p 71). In essence, this defense is “in substance negative” (Murray v Narwood, 192 N.Y. 172, 177) and results in the requirement that a “plaintiff, in undertaking to prove the contract upon which his lawsuit is based, [has] cast upon him the burden of establishing, by a preponderance of evidence, that it was a good and valid contract having a legal inception which was binding upon the defendant” (Fleming v Ponziani, 24 N.Y.2d 105, 110). In such cases, rescission is unnecessary (Gilbert v Rothschild, supra, p 71).
To be distinguished is the claim where an opponent of a contract asserts the defense of fraud in the inducement, which, if proven, renders the contract voidable (see Adams v Gillig, 199 N.Y. 314, 317). This form of fraud is usually based on facts occurring prior or subsequent to the execution of a contract which tend to demonstrate that an agreement, valid on its face and properly executed, is to be limited or avoided (see Mangini v McClurg, 24 N.Y.2d 556, 563). When an opponent of a contract alleges fraud in the inducement, whether as an affirmative defense or by way of a counterclaim seeking rescission, he must sustain the burden of persuasion (Steinberg v New York Life Ins. Co., 238 App Div 206, 210, revd on other grounds 263 N.Y. 45; see, also, D’Angelo v Hastings Oldsmobile, 89 AD2d 785, mot for lv to app den 57 N.Y.2d 836). That burden of proving fraud in the inducement, or a cause of lawsuit seeking rescission on that ground, requires that the proof be “by most satisfactory evidence” (Adams v Gillig, supra, p 323), which we interpret to be clear and convincing evidence rather than only a fair preponderance of the credible evidence. We have also accepted the principle that innocent misrepresentations are sufficient to make a contract voidable (see Albany Motor Inn & Rest. v Watkins, 85 AD2d 797, 798, mot for lv to app den 56 N.Y.2d 508; D’Angelo v Hastings Oldsmobile, supra).”
In the case above where John transferred his deed to Martha on the premise that he would receive shares of a company that owned a 5-storey apartment in Brooklyn (which later turned out to be untrue), John was fraudulently induced by Martha to deed his house to Martha. This deed is a voidable contract. There was fraud in inducement, subject to the 6-year statute of limitations.
Suppose, however, that John signed the deed, transferring his house to Martha, because Martha told him that it was an employment contract for one of John’s employees, then in this case, there is fraud in fact, and the contract is void. It is not subject to the statute of limitations and can be questioned anytime.
Lack of Capacity
Lack of capacity may render the contract void or voidable and make the contract subject to contesting a deed transfer. For example, if the person was already declared mentally incompetent by a court, any contract executed by the declared mentally incompetent person is void. The person lacks legal capacity to enter into a contract.
On the other hand, a contract entered into by a person who has not been declared mentally incompetent by a court is voidable, if that person is subsequently declared incompetent at that time he entered into such contract. The contract, however, can still be ratified when the person recovers capacity and still consents to such contract.
Recording of deed as constructive notice
As a general rule, recording of the deed with the county clerk is considered constructive notice to the public. Real Property Law (RPL) § 291 states that, every unrecorded conveyance is void as against any person who subsequently purchases or acquires the same real property in good faith and for valuable consideration from the same vendor, if the contract of the subsequent purchaser is made in good faith and is first duly recorded. Under this provision, a subsequent purchaser is not bound by unrecorded conveyances, for as long as the subsequent purchaser is in good faith and first duly recorded his interest. Under RPL § 266, a purchaser for valuable consideration is not protected if he had previous notice of the fraudulent intent of his immediate grantor or the fraud rendering void the title of such grantor.
Void contracts, however, do not benefit from the rule on recording as constructive notice to the world. Examples of void contracts are forged deeds or those executed under false pretenses. Void contracts do not pass title and cannot be enforced even against a bona fide purchaser who has recorded his deed. In Weiss v. Phillips, 157 A.D.3d 1 (2017), the court explained:
“To be clear, a deed may be cancelled because it is void or because it is voidable. The difference, however, between a void deed and a voidable deed is important under the law because it affects a party’s ability to defend against a future purchaser or encumbrancer for value. A void real estate transaction is one where the law deems that no transfer actually occurred (Faison v Lewis, 25 NY3d 220, 225 ). Accordingly, if the deed is void, it does not pass title and cannot be enforced even if title is later acquired by a bona fide purchaser (id.; ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801, 803 [2d Dept 2012]). Similarly, a lender who takes a mortgage to a property subject to a void deed does not have anything to mortgage, so the lender’s mortgage is invalid as well (Cruz v Cruz, 37 AD3d 754 [2d Dept 2007]; Yin Wu v Wu, 288 AD2d 104, 105 [1st Dept 2001]). In contrast, a voidable real estate transaction is one where a transfer is deemed to have occurred, but can be revoked. In that situation the deed is only voidable (Faison v Lewis, 25 NY3d at 225).
*11 The question becomes whether the deed by which Welch-Ford and Smith acquired the subject real estate was a void deed or a voidable deed. Forged deeds and/or encumbrances are those executed under false pretenses, and are void ab initio (see Marden v Dorthy, 160 NY 39 ; GMAC Mtge. Corp. v Chan, 56 AD3d 521, 522 [2d Dept 2008]; Cruz v Cruz, 37 AD3d 754 ). The interests of subsequent bona fide purchasers or encumbrancers for value are thus not protected under Real Property Law § 266 when their title is derived from a forged deed or one that is the product of false pretenses (see Ameriquest Mtge. Co. v Gaffney, 41 AD3d 750 [2d Dept 2007]; LaSalle Bank Natl. Assn. v Ally, 39 AD3d 597, 599-600 [2d Dept 2007]). In contrast, a fraudulently induced deed is merely voidable, not void (see Marden v Dorthy, 160 NY at 50; Dalessio v Kressler, 6 AD3d 57, 61 [2d Dept 2004]; Yin Wu v Wu, 288 AD2d at 105).”
In addition, the status of a good faith purchaser for value cannot be maintained if the purchaser had notice or knowledge of the prior interest in the property, or had knowledge of facts that would lead a reasonably prudent purchaser to make inquiries concerning such. Chen v. Geranium Devt. Corp., 243 A.D.2d 708 (1997); Barrett v Littles, 201 AD2d 444; United Matura Realty v Reade Indus., 155 AD2d 660; Morrocoy Marina v Altengarten, 120 AD2d 500; Vitale v Pinto, 118 AD2d 774.
In the very first example above where Martha fraudulently induced John to transfer his house to her in exchange for shares of a company that owned a 4-storey apartment building in Brooklyn and Martha recorded her deed, when do we count the period for the statute of limitations? Under CPLR § 213(8), it is counted 6 years from the time the cause of lawsuit accrued or the date when John would have discovered the fraud with reasonable diligence. The date John would have discovered the fraud is not counted from the date of recording because there was no fraud in recording. It is counted from the date he could have reasonably discovered the fraud that the company whose shares he received did not actually own the apartment building.
Suppose, however, that after Martha got John’s property, she subsequently sold it to Jennifer. John died one year after the transfer, and Louis, John’s executor, sued Martha and Jennifer for contesting a deed transfer to return the property. Will Louis’ claim prosper? Martha is not in a position to return the property anymore and can only be liable for damages. The claim against Jennifer will prosper if Jennifer had actual or constructive knowledge of the fraud Martha employed against John to get the property. If Jennifer did not have actual or constructive knowledge of the fraud and she purchased it from Martha for valuable consideration, she can be considered to be a purchaser in good faith with valid title.
Contesting a deed executed by a decedent can be complicated. There are many aspects involved, and it is important to seek counsel from an experienced lawyer immediately. The earlier you can file for contesting a deed transfer, the better, since the statute of limitations in cancelling deeds is strict. Generally, however, if the deed is void, the statute of limitations will not apply, but if the deed is voidable, the statute of limitations can bar a claim. A lawyer can help you determine and frame whether the deed executed by the decedent is void or voidable.
If you are contesting a deed transfer, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at email@example.com.