New Jersey Attorney Law Review Blog

--> In this post I discuss the issue of mortgage fraud as it relates to a borrower's claim that the signature appearing on the mortgage is a forgery.   On September 19, 2012 I am scheduled to try a case involving this very issue on behalf of a private mortgage lender seeking to enforce a mortgage pledged as collateral in connection with a business loan transaction.   Mock v. Bae, et al. , Superior Court of New Jersey, Chancery Division, Bergen County, Docket No.: F-58854-10.    Click here to download a copy of my trial brief filed with the Court. Succinctly summarizing from the trial brief, in New Jersey duly executed, notarized and recorded mortgage instruments  are presumptively valid and enforceable, and are presumed to have been made for good and valuable consideration.. In re Shaw , 51 F.Supp. 566, 568 (D.N.J. 1943), and N.J.S.A. 12A:3-308.  Under New Jersey law, a mortgage instrument must be duly acknowledged, prov...

--> In an opinion issued on July 31, 2012, the New Jersey Supreme Court declared that a pet owner is not entitled to recover damages for emotional distress caused by witnessing the traumatic death of her dog.  Joyce McDougall v. Charlot Lamm (A-99-10) (067436) . The facts are relatively straightforward.  On June 7, 2007, plaintiff Joyce McDougall was walking her dog when a large dog belonging to defendant Charlot Lamm ran out, grabbed McDougall's dog by the neck, and picked it up and shook it several times before dropping it, causing the death of her dog.  McDougall bought the dog as a puppy for $200 in 1997, and believed a new puppy would cost $1,395. At the trial level McDougall described her pet as a “friendly, lively, energetic dog” that loved children and was capable of performing numerous tricks.  McDougall testified that the dog was very happy to see her when she came home, slept in a bed near hers, and was with her much of the time....

In this post I briefly discuss the standards by which New Jersey Courts are to apply in determining whether a corporation is the successor-in-interest to, or alter-ego of, a previously existing but defunct corporate entity.  The issue often presents itself when an insolvent closely held corporate entity (such as construction companies or other privately held small businesses)  looks to rid itself of trade debt without effectively shutting down the business and losing valuable assets, customers, contracts or good will.  Unscrupulous business owners may attempt to accomplish this seemingly impossible feat by engaging in fraudulent asset transfers - essentially taking the assets from the debt-ridden business and transferring them over to a new business often established under another family member's name without paying anything to the former business - intended to avoid creditors.    My firm is presently pursuing this exact claim in a matter c...

  What happens when a judgment creditor holding a judgment against only one spouse levies on their joint bank account and moves for turnover of 100% of the funds in the account - should the husband and wife kiss all the money goodbye?   Not necessarily. The New Jersey Multiple Party Deposit Account Act (“NJMPDAA”), N.J.S.A. § 17:16I-1, et seq., which governs “multiple party deposit accounts” (“MPDAs”), including joint bank accounts, provides in relevant part: Unless a contrary intent is manifested by the terms of the contract, or the deposit agreement, or there is other clear and convincing evidence of a different intent at the time the account is created:  a. A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit. In the absence of proof of net contributions, the account belongs in equal shares to all parties having present right of withdrawal.  N.J....

One of my clients is currently involved in bitter litigation with a judgment creditor who is trying to wrestle away her ability to hold onto a small hair salon that she incorporated several years ago and which operates in Ridgewood, New Jersey. In this particular instance, the judgment creditor claims to have perfected its judgment lien against my client's stock ownership in the hair salon by virtue of a levy made by the Bergen County Sheriff some several years before my client filed a Chapter 7 bankruptcy petition, and is objecting to a proposed settlement between my client and the Chapter 7 bankruptcy Trustee that would enable my client to purchase the Trustee's claims against the stock.   My client,  currently a debtor in a Chapter 7 bankruptcy case pending in the United States Bankruptcy Court for the District of New Jersey, disputes the judgment creditor's claim and maintains that the judgment creditor is, at most, an unsecured creditor who failed ...

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...