New Jersey Attorney Law Review Blog

In an important decision that provides guidelines for retiring judges seeking future employment in the legal profession, on September 24, 2008 the New Jersey Supreme Court ordered that a new trial must be conducted because of the appearance of impropriety created by a then soon-to-be retiring Chancery Court trial judge who, before the case had been concluded, began negotiating employment with an attorney appearing before him whose firm represented one of the litigants in the same case. DeNike v. Cupo (A-61-07, September 24, 2008). In so ruling, the New Jersey Supreme Court reversed the decision of the lower court (Appellate Division) which had determined that the trial judge's conduct, although inappropriate, did not influence the outcome of the case because the trial judge already had issued his substantive rulings in several written opinions and that his remaining functions as the presiding judge in this case were "ministerial." The NJ Supreme Court concluded that the...

A bank employee who misappropriates a customer's cash deposit can expose the bank to a claim under the New Jersey Consumer Fraud Act, a NJ appeals court ruled in Lee v. First Union National Bank, et al. , App. Div., Case No.: 09-2-1547. In this case, the plaintiff, an existing customer of First Union National Bank, alleged she paid $2,000 in cash to a bank employee who worked in the bank's brokerage services unit which was supposed to be used to purchase shares of a mutual fund. Instead of depositing these funds into her brokerage account, the plaintiff claimed the bank's employee misappropriated her $2,000 cash tender for his own personal use which resulted in an overdraft in her checking account. The bank covered the shortfall by taking money from plaintiff's checking account and liquidating some of the mutual fund shares. Plaintiff's complaint alleged violation of the Consumer Fraud Act (CFA) and common-law conversion. The trial judge granted summary judgment in ...

Banks beware! In a case of first impression, a New Jersey appeals court held that a bank that pursues criminal charges against an innocent third party whose identify is stolen and used to defraud the bank can be sued civilly for negligence and malicious prosecution. In this particular case, Brunson v. Affinity Federal Credit Union , A-4439-06, the bank employed a fraud and loss prevention specialist (Mr. Wilcox) who happened to be a certified fraud examiner. According to the appellate record, an imposter posing as the plaintiff Brunson opened an Affinity account in Brunson's name using Brunson's social security number and an out-of-state driver's license bearing Brunson's date of birth and a Paterson, NJ address (misspelled with two "t's".) Within days of opening this account, the imposter successfully cashed $9,506 in phony checks drawn against a corporation known as Viva International Group. The bank's fraud and loss prevention specialist Wilcox wa...

In Simmermon v. Dryvit Systems, Inc. (A55-07), the New Jersey Supreme Court was presented with determining whether the full faith and credit clause of the US Constitution requires a New Jersey court to give preclusive effect to a nationwide class action consumer fraud settlement approved by a Tennessee circuit court. (View the video of oral argument before the NJ Suprem Court http://njlegallib.rutgers.edu/supct/args/A_55_07.php ) The New Jersey Supreme Court held that the Tennessee court is the appropriate forum to determine whether Simmermon should be bound by the settlement entered in that court and thus barred from pursuing his own individual case in New Jersey. However, because of tactical gamesmanship employed by the principal defendant in Simmermon's individual lawsuit, the New Jersey Supreme Court held that the defendant will be responsible for Simmermon's attorneys' fees and litigation expenses. In the New Jersey lawsuit, the plaintiff asserted the same types of cl...

Richard A. Pulaski Construction Co., Inc. v. Air Frame Hangars, Inc. (A-40-07, July 1, 2008). The New Jersey Supreme Court leaves open the question of whether New Jersey common law recognizes a prima facie tort claim. The legal definition of "prima facie" is evidence sufficient in law to establish a fact unless rebutted. In this case the New Jersey Supreme Court had to decide whether New Jersey common law provides a remedy for misconduct that did not meet the traditional standards of a tort cause of action (i.e., such as fraud). This was not the first time the Court confronted this issue, for 10 years earlier in Taylor v. Metzger , 152 N.J. 490 (1998), the Court expressly declined to recognize a prima facie tort claim under New Jersey common law. However, in Taylor the Court noted that a leading treatise (Restatement) explained that such a cause of action encompasses the intentional, willful and malicious harms that "fall within the gaps of the law" and have been m...

On June 4, 2008, the New Jersey Supreme Court in Romagnola v. Gillispie, Inc. (A-57-07), held that a litigant who complied with a procedural court rule that was subsequently amended was entitled to enforce the rule as it existed pre-amendment. The plaintiff in this case availed himself of the offer of judgment rule, R. 4:58-2, which allows a litigant to recover his/her counsel fees if the litigant offers to accept a judgment for a specific amount, the defendant rejects the offer, and the litigant prevails at trial. Prior to September 1, 2004, to trigger an award of counsel fees R. 4:58-2 required that the litigant obtain a money judgment for a sum "as least as favorable as the rejected offer." On September 1, 2004, R. 4:58-2 was amended to increase the money judgment requirement to be "an amount that is 120% of the offer or more." In 2002 plaintiff sued the defendants for breach of contract and other related claims. The parties engaged in extensive pretrial discover...

Score a victory for homeowners in New Jersey who have been duped by “white knight” lenders on the eve of sheriff’s foreclosure sale! In a published opinion issued by the New Jersey Appellate Division on May 19, 2008, Nowoleska vs. Steele, et als., Appellate Div. 2008, Docket No.: A-5759-06T15759-06T1, the Court came to the rescue of an elderly lady and her daughter and son-in-law who unwittingly gave up title to their family home in order to avoid a sheriff’s sale thinking they would be able to get the property back. In this case, the Appellate Division was presented with the question of whether to vacate a default judgment entered against defendants that resulted in awarding possession of the family home to a subsequent purchaser who acquired title to the property based upon prior predatory lending practices of predecessors in title. Defendants, including an 83-year old woman named Marjorie Steele, faced ejectment from the house that was occupied as the family home for 43 years. Origi...

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 lifetim...

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 t...

In a decision rendered on January 15, 2008, the New Jersey Supreme Court held that a tax sale certificate and subsequent foreclosure by the purchaser of a tax sale certificate did not prevent the municipality from obtaining the land, which prior owners had dedicated for public use as a park 78 years ago. However, the township must reimburse the tax sale certificate holder for its expenses plus interest, the Supreme Court ruled. The irony of this case is that the township sold the lot at a municipal tax sale without realizing that the property was previously dedicated for public use. After the sale, the township approached the purchaser on several occasions offering to buy the lot back so that it could be dedicated as a park. The purchaser declined, and thereafter successfully obtained title to the property in a separately filed foreclosure suit, and contracted to sell the property to a construction company for the building of a residence. The township filed a separate lawsuit against...