New Jersey Attorney Law Review Blog

Given the substantial number of property foreclosures in recent years,  I frequently report on decisions involving foreclosure law.   In a case of first impression, on March 29, 2012, the New Jersey Appellate Division held that municipal fines/penalties imposed against the property owner under New Jersey's Uniform Fire Safety Act were wiped out by the bank's foreclosure of the property owner's mortgage.   Pitman v. Monroe Savings Bank , Superior Court of New Jersey, Appellate Division, Docket No.: A-3110-10.  This case interprets N.J.S.A. 52:27D-192 et. seq. known as the Uniform Fire Safety Act and the corresponding Uniform Fire Saftey Code 5:70-1.2 et. seq. as they apply to property acquired by foreclosure. A bank or any other entity acquiring a commercial property through foreclosure is not a "subsequent owner or one who succeeds to control over the premises" under the Code and therefore is not liable for outstanding fire code penal...

In what appears to be a case of first impression in New Jersey, a Bergen County judge fined a jury foreman $500 for Googling possible sentencing penalties for a defendant in a drug case. The jury's deliberations ended in a mistrial after he shared his concerns with fellow jurors. In the Matter of Daniel Kaminsky , Superior Court of New Jersey, Bergen County (March 13, 2012) .   As wonderful as modern technology has become, this case demonstrates how the availability to readily access the Internet from almost anywhere on hand held devices and smart phones can negatively impact the sanctity of our judicial system.    FACTS Kaminsky participated as a juror in State v. Luis A. Montas, Indictment No. S-149-11, a criminal matter in which Montas was indicted for allegedly selling 1,500 ecstasy pills to an undercover agent.  The jury heard the case over the course of five days in December, 2011.  Kaminsky was designated the jury foreperson. During the ju...

In a decision published on March 8, 2012 involving a novel issue in New Jersey debtor/creditors' rights laws, a New Jersey appellate panel held that a mortgage company's obligation to make monthly payments to a homeowner pursuant to a reverse mortgage is subject to attachment by a creditor holding a judgment against the homeowner. Cameron v. Ewing , Superior Court of New Jersey, Appellate Division, Docket No. A-3628-10T2. The trial court determined that the monthly stream of reverse mortgage payments were beyond the reach of judgment creditors, and thus denied the creditor's motion to compel the mortgage company to turnover the payments as part of the creditor's attempt to collect its judgment via garnishment on the mortgage company.   The judgment creditor appealed, and the Appellate Division reversed having concluded that the mortgagee's obligation to make monthly payments to the defendant judgment debtor is properly construed to be a "debt" ...

New Jersey Court Rule 2:4-1(a) requires appeals from final judgments in civil cases to be taken within 45 days of the entry of final judgment.  As the Rule clearly states, the 45-day appellate period starts to run when the judgment or order appealed from is entered. Pogostin v. Leighton , 216 N.J.Super. 363, 370 (App. Div. 1987). As with most court rules there are usually exceptions, and this rule is no different.   The 45-day appeals period is tolled or stayed by the limited number of events cited in Rule 2:4-3(c), including a timely motion for reconsideration filed pursuant to New Jersey Court Rule 4:49-2 within 20 days of the entry of a final judgment .  In a motion for reconsideration, the dissatisfied party is required to assert that the court overlooked controlling legal precedent or made an error.  Not surprisingly, motions for reconsideration are rarely granted. In many instances, litigants attempt to use motions for reconsideration as the ...

' 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 ...