New Jersey Attorney Law Review Blog

A self-professed problem gambler who voluntarily placed himself on the New Jersey Casino Control Commission's lifetime self-exclusion list is not entitled to removal from that list on becoming aware that out-of-state casinos affiliated with New Jersey casinos would also exclude him from their gaming facilities, the Appellate Division ruled on March 20, 2008 in The Matter of the Petition of S.D. for Removal From the Voluntary Self-Exclusion List, A-3427-06T2.

In this particular case, on July 26, 2004 the gambler (S.D.) submitted a "self-exclusion questionnaire" for lifetime placement on New Jersey's self-exclusion list. In signing the questionnaire, S.D. acknowledged that he was a problem gambler; that he authorized the New Jersey casino and casino simulcasting facilities to exclude him from all gaming activities; that he read and understood the instructions appearing on the questionnaire; and affixed his initials to to a question explaining that by choosing a lifetime ban he could not request to be taken off the list.

Only a month later, on August 24, 2004, S.D. sent the division a letter requesting that his lifetime ban be rescinded or downgraded. According to S.D., he claimed he agreed to ban himself only from Atlantic City, which was near his home, so that he would force himself to restrict his gambling to Vegas trips. S.D. having received a letter from Ceasers, which maintains casinos in Atlantic City and Las Vegas, notifying him that his voluntary submission to New Jersey's resulted in his being banned in its Las Vegas casino, S.D. claimed that he never would have voluntarily banned himself if he knew the ban would extend to other gaming facilities in other parts of the United States.

Ultimately, S.D. filed a formal petition with the New Jersey Casino Control Commission seeking an order removing his lifetime ban from the SEL. According to his petition, S.D. argued that he did not knowingly and voluntarily waive his rights because the questionnaire did not inform him that putting himself on New Jersey's SEL would result in his being excluded from other affiliated casinos throughout the USA. The Commission denied S.D.'s petition for, among other reasons, that there was no regulation justifying removal of a person who voluntarily chooses a lifetime self-exclusion ban, or any regulation directing casinos in other states to allow a voluntary participant in a New Jersey SEL to gamble at their facilities.

Dissatisfied, S.D. appealed the Commission's denial of his petition to the Superior Court of New Jersey, Appellate Division, which has appellate jurisdiction from final orders of administrative agencies. Applying an "abuse of discretion standard", the Appellate Division found that the Commission's decision was supported by ample facts, law and public policy. Recognizing that there is no fundamental right to gamble, either by statute or by constitution, the Appellate Division concluded that S.D. voluntarily surrendered whatever right he had to participate in gaming activities in New Jersey when he placed himself on lifetime SEL. That S.D.'s decision to submit to New Jersey's SEL resulted in his banishment from casinos in other jurisdictions was a collateral consequence of his contract or agreement with the State of New Jersey, the Appellate Division reasoned.

Further, the appellate court remarked that the voluntary exclusion policies of the private parent companies of New Jersey casino licensees was not something within the purview or jurisdiction of the New Jersey Casino Control Commission. Hence, the appellate court held that the Commission had no obligation to inform S.D. of any collateral consequences of his New Jersey SEL.

What does this case mean for NJ gamblers? Think carefully before folding your hand.

In a victory for homeowners, the New Jersey Supreme Court has ruled that where notice of a sheriff's sale was procedurally deficient, the equitable doctrine of laches will not serve to bar relief to the homeowner. U.S. v. Scurry, A-14 September Term 2007.

In this case, the homeowner was sued in foreclosure by her lender after falling behind in her mortgage payments. The homeowner subsequently filed Chapter 13 bankruptcy in an effort to save her home, however she also fell behind in her post-petition mortgage payments resulting in the bank obtaining relief from the automatic stay of the bankruptcy case. The bank then returned to the foreclosure court, obtained final judgment and received notice of a sheriff's sale date. Pursuant to NJ Court Rule 4:65-2, the bank was required to provide the homeowner with at least 10 days' prior written notice of the sheriff's sale by registered or certified mail return receipt requested. The bank was unable to prove that it satisfied this requirement, failing to produce a return receipt card. Notwithstanding, the sheriff's sale was held and the bank was the successful bidder.

Approximately 3 months after the sheriff's sale had concludedd, the sheriff's department served the homeowner with a writ of possession which prompted the homeowner to immediately contact her bankruptcy lawyer. The homeonwer then deposited the post-bankruptcy mortgage arrears with her lawyer, and her lawyer promptly notified the bank's foreclosure counsel that he was holding the funds necessary to cure the post-petition arrears. The bank's counsel never responded, and on September 8, 2005 the homeonwer and her personal belongings were removed from the property.

Three months after the lockout, the homeowner filed a motion before the Chancery Court seeking to vacate the sheriff's sale on the basis of lack of proper notice. Not surprisingly, the bank opposed the motion claiming it had incurred $3000 in costs to enforce the lockout and that it would be prejudiced by the inordinate delay - the sheriff's sale having occured some 7 months earlier. The trial court denied the homeowner's motion, and after an unsuccessful motion for reconsideration she appealed to the Appellate Division. The Appellate Division affirmed, finding that even though the bank didn't properly provide notice of the sheriff's sale the trial court did not abuse its discretion given the delay caused by the homeowner's bankruptcy case, the furtehr delay after she became aware of the sheriff's sale, and the absence of any evidence of her financial ability to rectify the situation. The Appellate Division concluded that the equitable doctrine of laches, which will deny a party enforcement of a known right when the party engages in an inexcusable delay in exercising that right to the prejudice of the other party, barred relief to the homeowner.

Championing the rights of substantive due process, the New Jersey Supreme Court overturned the Appellate Division's decision. The Court found, in balancing the equities, the prejudice, alleged by the bank did not match the prejudice sustained by the defendant who had been dispossessed from her home without the bank's compliance with the procedural notice requirements. The Supreme Court therefore concluded that application of the equitable doctrine of laches to bar relief to the defendant constituted an abuse of discretion.

In this author's opinion, this represents a substantial victory for homeowners. Too many times, lenders' foreclosure attorneys don't comply with procedural rules and get away with it because most litigants in this position don't have the financial resources to mount a challenge. The Supreme Court apparently was not willing to overlook such a substantial defect in the notice requirements imposed by the New Jersey Court Rules.

Labels: New Jersey Tax Sale Foreclosure Ruling

the bank contented that the purpose of New Jersey's merger doctrine is to avoid the inequitable result of a defaulting mortgagor paying the lesser amount of a foreclosure judgment, while also receiving the same benefit as a non-defaulting mortgagor who pays the full contractual obligation.

Labels: New Jersey Foreclosure Ruling

September 12, 2007

In this case, the New Jersey Supreme Court was faced with the difficult question of determining whether a physician is required to inform a patient, who was in the 6th to 8th week of her pregnancy, that an abortion procedure will kill not just potential life, but an actual existing human being. In this case, the plaintiff filed a medical malpractice action claiming that her physician, an obstetrician-gynecologist, performed an abortion without her informed consent. Specifically, the plaintiff alleged in her Complaint that the doctor breached his duty to her by failing to inform her of "the scientific and medical fact [that her six-to-eight-week-old embryo] was a complete, separate, unique, and irreplaceable human being" and that an abortion would result in "killing an existing human being."

In finding in favor of the doctor,

the New Jersey Supreme Court concluded that there is no common law duty requiring a physician to inform a pregnant patient that an embryo is an existing, living human being and that an abortion results in the killing of a family member

. Click here to read the full case opinion.

June 1, 2007. New Jersey Supreme Court Justice Roberto Rivera-Soto conceded that he violated judicial ethics rules by creating an appearance of impropriety in contacting school, police and court authorities in a dispute involving his son, but denied any deliberate misconduct. In a letter to the Advisory Committee on Judicial Conduct, he stated that in order to "prevent any further harm to the Court's reputation" he would waive a formal hearing and stipulate that the charges against him be decided on the basis of the investigatory record and his statement in lieu of formal testimony.

"I deeply regret that my actions in defense of my son have raised questions about my integrity, and have created the potential to undermine the public's trust and confidence in the Court," Rivera-Soto remarked, adding he was "profoundly sorry" for his actions and their effect.

But Rivera-Soto did not recede his position asserted in his May 18 answer that he sought no preferential treatment when he pressured Haddonfield Township school officials to act, called the town police chief's cell phone, reached out to a prosecutor and two judges and handed his business card to a court employee. Rivera-Soto explained that he was trying to have the matter handled "in the ordinary course" and that in hindsight, "I underestimated the capacity that my position has to influence others."

Rivera-Soto's actions occurred last fall in response to alleged bullying of Rivera-Soto’s 15-year-old son Christian by C.L., an older teammate on the Haddonfield Township High School football team. A juvenile delinquent complaint filed by Rivera-Soto against C.L. in Camden County Family Part was resolved on Dec. 15 when the parties agreed to let the matter rest if there were no further incidents between the youths by June 19, 2007, the end of the school year. In his answer to the complaint, Rivera-Soto said he used his own stationery, not the Court's, when he wrote to Camden County Presiding Family Judge Charles Rand about the case against C.L. and implied that the limitations imposed by his position on the Court left his son unable to defend himself against C.L.'s "assaults." He also says, in his letter, that he was not seeking revenge, only "that my son be left alone."

The complaint in In the Matter of Roberto Rivera-Soto, ACJC 2007-097, filed May 11, accuses Rivera-Soto of violating Judicial Canons 1, 2A and 2B and a rule, 2:15-8(a)(6), that bars conduct bringing the judicial office into disrepute. Rivera-Soto, appointed to the Court by Gov. James McGreevey in 2004, will be reviewed for tenure in 2011.

A New Jersey judicial ethics committee filed a Complaint against New Jersey associate Supreme Court Justice Roberto River-Soto on May 11, 2007 accusing him of violating certain Judicial Canons, and R. 4:15-8(a)(6) which bars conduct that brings the judicial office into disrepute. The Complaint stems from Justice Rivero-Soto's involvement with his son's juvenile delinquency complaint filed in municipal court against another high school football player accused of harassment.

Rivera-Soto's son accused the captain of the Haddonfield Memorial High School football team of assaulting him during practice. According to the ethics committee complaint — just the second ethics complaint filed against a state Supreme Court justice in more than three decades — Rivera-Soto made phone calls or wrote letters to team and school officials, the local police chief, two judges and the Camden County prosecutor on behalf of his son.

At times, the ethics complaint charged, Rivera-Soto alluded to his office while placing calls. When introducing himself to a detective sergeant, Rivera-Soto handed out his business card. He also asked a Camden County Superior Court assignment judge to treat his charges the same as any other, but asked him "to make certain his complaint received attention." He did the same with Camden County's acting prosecutor.

When a court hearing was delayed without his knowledge or prior notice, Rivera-Soto allegedly asked a court employee "if she knew who he was" and gave her a business card, then wrote the presiding judge to complain about the postponement.

Rivera-Soto admitted contacting the Haddonfield police chief, the acting Camden County prosecutor, and judges in the case. But, the response says, he did not mean to improperly influence them and in one circumstance wrote to a judge on personal letterhead bearing his name and home address.

“It was never his purpose or intention to influence the acts of anyone by reference to his judicial position," the response says of Rivera-Soto. "His intent at all times was to avoid any appearance of impropriety," and he regrets any misunderstanding.

A hearing remains to be scheduled and conducted by the judicial ethics committee.