New Jersey Attorney Law Review Blog

' T his question frequently arises in the context of consulting with married couples who own jointly held real estate and a creditor has obtained a civil money judgment against only one of them.  The most typical example is when either the husband or wife personally guarantees a business debt, the business ultimately fails or the husband or wife defaults on the loan, and the creditor files suit and recovers a judgment on the personal guaranty.   Under New Jersey law can the judgment creditor of one spouse compel a court to order the sale of their jointly held marital residence?   The short answer is "no," provided that the non-debtor spouse survives the debtor spouse.  When the debtor spouse passes away, the creditor's judgment goes to the grave with him/her and the surviving spouse holds the marital residence free and clear of the judgment.   However, during the lifetime of the debtor spouse the judgment creditor is still permitted to levy ...

In a case of first impression in New Jersey which I am dubbing as the "Bakery vs. the Bagelry," the Appellate Division held that a plaintiff could not maintain a class action lawsuit to enforce a private cause of action seeking damages for transmission of an unsolicited fax.  Local Baking Products, Inc. v. Kosher Bagel Munch, Inc ., Docket No. A-3923-09T2 (App. Div. 2011) .    In this case, the plaintiff Local Baking Products received an unsolicited one-page fax from defendant Kosher Bagel Munch promoting Bagel Munch's local restaurant in Passaic, New Jersey.   This fax was sent by a marketing company hired by Bagel Munch as part of a "blast fax" campaign advertising Bagel Munch's food services to over 6000 phone numbers - the fax was ultimately received by approximately 4649 fax machines.   In response to receiving this unsolicited fax, the bakery filed a complaint against Bagel Munch seeking damages for itself and on behalf of...

A New Jersey federal appeals court has reinstated a copyright and defamation lawsuit against a New Jersey radio station and its DJ's, one of whom is currently a co-host of the popular WFAN Sports talk radio show of Boomer & Carton.   Access to the U.S. Third Circuit Court of Appeals written opinion issued in Murphy v. Millennium Radio Group , Case No. 10-2163, can be found here . In this case the plaintiff, Peter Murphy, alleges that the defendants violated the Digital Millennium Copyright Act for failure to post his credit for a photograph appearing on the radio station's website.   In addition, Murphy alleges that both DJ's defamed him during a 45 minute broadcast of their radio show by calling him a "man not to be trusted" in business dealings and suggesting he is gay. Murphy had taken a photo of 101.5 FM DJ's Craig Carton and Ray Rossi for the New Jersey Monthly magazine, which had named them New Jersey's "best shock jocks....

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       "All orders compelling and denying arbitration shall be deemed final for purposes of appeal,  regardless of whether such orders dispose of all issues and all parties, the time for appeal therefrom starts from the date of the entry of that order," said the New Jersey Supreme Court in a recent ruling issued in the case of G MAC v. Rosanna Pittella v. Pine Belt Enterprises, Inc. (March 23, 2011, A-15-10) .   The relevant facts of the case are as follows:   On February 27, 2003, Pittella entered into a “retail installment sale contract” with Pine Belt to finance the purchase of a car she bought at the Pine Belt auto dealership. Pittella simultaneously signed an arbitration agreement entitled “Option to Arbitrate Disputes,” which obligated Pitella to submit to binding arbitration any dispute arising out her financing, leasing or acquisition of the vehicle.  In addition, the arbitration provision of the retail installment contract s...

In Freeman v. Corzine (United States Court of Appeals for the Third Circuit, Nos. 08-3268 and 08-3302, December 2010), the plaintiffs – two New Jersey wine enthusiasts, a New Jersey couple seeking access to more Kosher wines, and a California winery – brought suit in the United States District Court for the District of New Jersey against Jerry Fischer, New Jersey’s Director of Alcoholic Beverage Control, alleging that several aspects of New Jersey’s Alcoholic Beverage Control Law (“ABC Law”) infringe on the dormant Commerce Clause in violation of 42 U.S.C. § 1983.  The suit challenged the constitutionality of parts of New Jersey’s alcohol beverage control laws permitting certain New Jersey farmers and wineries to bypass wholesalers and sell directly to retailers and consumers. Currently, out-of-state wineries must exclusively go through wholesale distributors to sell their products in New Jersey, but in-state vineyards can sell to customers directly in on-site tast...

According to the unanimous decision published by the New Jersey Supreme Court on January 26, 2011, the parents of a teenage girl did not commit child abuse by slapping their daughter and taking a portion of her part-time wages to pay family bills.  New Jersey Division of Youth and Family Services v. P.W.R. (A-79-09, January 26, 2011).  The Court found the state Division of Youth and Family Services ("DYFS") lacked sufficient evidence to remove the teenager (Alice) from her father and stepmother’s home in 2008, and  vacated the abuse and neglect judgment against her stepmother (Pam). DYFS removed the girl from the home after her grandfather reported the parents for taking her earnings from her part-time job and "slapping her around." A DYFS worker also found the home was without heat and authorized an emergency removal. The father told a DYFS representative that his wife (Pam) had slapped his daughter (Alice) once two years earlier, and that part ...

Attention Bloggers!   In a case that could have far-reaching effects on online commentary in the media, the NJ Supreme Court heard arguments today on whether a blogger from Washington state is protected by New Jersey’s so-called shield law concerning her writings about out Freehold-based Too Much Media Inc. ("TMM"), a maker of software used by many adult entertainment websites to track sales.    According to the court filings, the blogger Shellee Hale, a former Microsoft employee and a private investigator, maintains she was working as a journalist in 2008 when she set out to investigate organized crime infiltration of the online porn industry.  Hale created a website under the domain name  Pornafia.com (which now forwards to shellehale.com) to report her findings, and even planned to publish a book on the subject.  Hale chose not to publish any articles on  her website  (Pornafia.com) because she claims TMM princi...

Assume the following scenario:  A client consults with a NJ bankruptcy lawyer about filing a bankruptcy case.  During the course of their initial meeting, the client discloses that one of his largest creditors recently filed a lawsuit in the Superior Court of New Jersey (“NJ Court”) accusing him of engaging in fraud, and that he failed to respond to the lawsuit which resulted in the Court entering a judgment by default (or default judgment) against him for $200,000 predicated on fraud.. “How does this default judgment affect my bankruptcy case?,” the client asks the lawyer. The lawyer explains that while bankruptcy will discharge or wipe out most unsecured debts that the Bankruptcy Code provides a remedy for creditors to challenge the discharge of a particular debt grounded in fraud.  To secure an exception to discharge, the Bankruptcy Code requires the creditor to file a separate lawsuit (called an adversary proceeding) in the Bankruptcy Court chal...

  Argues Chief Justice did not have power to fill vacant seat In an unprecedented move that jolted New Jersey's legal community, on December 10, 2010 New Jersey Supreme Court Justice Roberto A. Rivera-Soto announced that he will abstain from the New Jersey Supreme Court's decisions claiming that the Court's Chief Justice, the Honorable Stuart Rabner, did not have the constitutional power to appoint a temporary justice (appeals court Justice Edwin Stern) to temporarily fill a vacant seat on the seven-member Court.  The dispute stems from a controversy that has been boiling since May 2010 when Republican New Jersey Governor Christie refused to renominate Democratic-appointed Justice John Wallace to the Court and, instead, nominated Anne Patterson, a Morristown attorney and a Republican. Democratic legislative leaders charged that Governer Christie's action was unparalleled and Senate President Stephen M. Sweeney (D-Gloucester) declared the upper house ...

    In a 4-2 vote, New Jersey's Supreme Court in The Committee to Recall Robert Menendez v. Nina Wells (A-86-09) held that a tea-party group can't continue with its effort to recall U.S. Sen. Robert Menendez. The group, amongst Menendez's critics, argued that the states have the power to regulate recall efforts because the U.S. Constitution is silent on the issue. Specifically, the tea party group maintained that an amendment to New Jersey's state constitution later implemented by statute provides for the recall of any elected official “in this State or representing this State in the United States Congress.” The Judges sided with lawyers for the New Jersey Democrat, who said a recall would violate the U.S. Constitution. Menendez is up for re-election in 2012. According to news reports, the Committee says it will be appeal to the U.S. Supreme Court. The facts and procedural history of the case are as follows:   In 1993, New Jersey voters approved an amendment to th...

The following appeals were recently added to the docket of the New Jersey Supreme Court.   We will report the outcome of these decisions when the the Court publishes their opinions, which could take 4 to 6 months or more. A-34-10 O Builders & Associates, Inc. v. Yuna Corp. of NJ d/b/a Baden Baden Restaurant (066490) Did the prior consultation between the defendant and plaintiff’s attorney create a conflict that required the attorney to be disqualified from representing plaintiff in this litigation? Certification granted 10/28/10 A-27-10  Peter Risko v. Thompson Muller Automotive Group t/a Hammonton Chrysler Jeep Dodge (066502) In this wrongful death case arising from a slip-and-fall, did the cumulative effect of plaintiff’s attorney’s comments during summation, including telling the jury that they would be “ignoring the law” if they had an issue with “a million dollar case,” violate the prohibition against suggesting a verdict? Leave to appeal gra...

In a case of first impression, the New Jersey Appellate Division affirmed the dismissal of negligence claims brought against securities brokerage firm Merrill Lynch, finding that Merrill Lynch owed no duty of care to third parties who claimed the company should have policed its customer's account for fraud.  Frederick vs. Smith, et als. , Superior Court of New Jersey, Appellate Division, Docket A-1620-09T2 (November 9, 2010). In this case the plaintiffs alleged that defendant Maxwell Baldwin Smith (Smith) convinced them to invest in Healthcare Financial Partnership (HFP), a fictitious entity.  As part of the fraud, Smith instructed plaintiffs to convey the invested funds to an account that he maintained with Merrill Lynch.  Plaintiffs were not Merrill Lynch clients, yet Merrill Lynch accepted payment directly from the plaintiffs and the funds were deposited into Smith's account.  In support of their negligence claims, plaintiffs alleged that Smith convinced t...