A creditor seeking to collect a judgment has many options. It can levy on a bank account, garnish the debtor’s wages or seek to sell any real estate owned by the debtor. However, there are rules and limitations on that process.
For example, a creditor may not seek to sell the debtor’s real estate to satisfy a judgment unless it has exhausted its efforts to locate and collect from the defendant’s personal assets. The creditor must obtain a court order finding that it has met this obligation, and must detail to the court what it has done to carry this out.
With that court order in hand, the creditor can proceed to schedule an execution of the real estate through the sheriffs office. But not so fast! As the Appellate Division recently decided, when that real estate is owned by husband and wife, and the judgment is only against one spouse, New Jersey law prohibits the forced sale of the property to satisfy the judgment. This is based on a statute which requires the written consent of both spouses in order to sell jointly owned real estate. The creditor may still levy on the judgment debtor’s interest in marital real estate but it cannot compel the sale of such property.
Proceedings under the Bankruptcy Code lead to a different result. In such cases, the bankruptcy trustee has the power to partition and sell real estate owned by husband and wife to satisfy the debt of the filing spouse.
Nonetheless, serious thought should be given to holding all real estate as tenants by the entirety if possible, in order to protect it from creditors.
A last will and testament will usually designate an executor to carry out the decedent’s wishes. Upon death, the will is submitted to the county surrogate for probate. At the same time, the executor qualifies and is issued letters testamentary, and then may act on behalf of the estate.
When a person dies without a will, any of his next of kin may apply to the surrogate for letters of administration. The applicant must obtain renunciations from the other next of kin to permit the letters of administration to be issued. This means that the others are giving up their rights to become administrators of the estate. This can often become contentious, and result in a complaint being filed with the surrogate seeking to have the court appoint the applicant as administrator. This usually involves a hearing, with the judge determining who will be appointed as administrator.
In a recent case handled by Mr. Whelan, the surviving spouse applied for letters of administration but falsely stated in her application that her husband had no children. She also neglected to disclose the decedent’s interest in two valuable properties. The decedent’s daughter retained this office to file a complaint requesting that the court revoke the letters of administration issued to the surviving spouse due to her fraud in her application.
In response to the complaint, the spouse claimed that the surrogate had not explained to her that the application required disclosure of all children of her husband. She also claimed that she had no idea about the properties, although she had listed one for sale immediately following the issuance of the letters of administration.
Clearly the spouse did not want to seek a renunciation from her stepdaughter, and took an improper shortcut.
At the conclusion of the hearing, the judge determined that the spouse was not fit to serve as administrator, and revoked the letters of administration issued to her. Our client was thus protected from the spouse’s sale of the estate assets without accounting to her stepdaughter for the sale proceeds. It was gratifying to protect our client’s rights in this matter.
When a tenant moves out of an apartment but leaves personal belongings behind, the landlord may not dispose of the property without giving the tenant an opportunity to return to the apartment and remove the belongings. This applies even if the tenant owes rent and even if the tenant was legally evicted by the court.
In New Jersey, a law called the Abandoned Tenant Property Statute requires landlords to give written notice to former tenants if the landlord wants to dispose of property left by the tenants after they have moved out. The notice must state that the landlord considers the property left behind abandoned. The notice must give the tenant a time period in which to claim the property. This is 30 days after delivery of the landlord’s written notice; or 33 days after the notice is mailed, whichever comes first.
The notice must also inform the former tenant that, if the property is not removed, the landlord will sell it at a public or private sale or will dispose of or destroy the property if it has little or no value.
The landlord’s notice must be sent by certified mail, return receipt requested, or by receipted first class mail addressed to the tenant at his or her last known address or addresses. The landlord must mark the envelope “Please Forward.”
If the tenant wants her property back, she should immediately notify in writing the landlord that she intends to reclaim the property.. If the tenant does not notify the landlord in writing, then she must remove the property in the time set out in the landlord’s notice (as described above).
If the former tenant returns to recover his property, the landlord must make the property available for removal by the tenant without payment of any unpaid rent. However, the landlord may store the tenant’s property and, if the landlord pays for storage, the tenant must pay the storage charges before removing the property from the premises.
If the tenant fails to respond to the notice or fails to remove the property within the required amount of time, the landlord may dispose of it either by selling it at a public or private sale or by disposing of it if it has no value. If the landlord sells the property, he may deduct the reasonable costs of notice of the sale, storage, and any unpaid rent and charges not covered by the tenant’s security deposit, but then must give any remainder to the tenant with an itemized accounting.
In merry olde England, the King was the law. Whatever he said went. Eventually, a second branch of law developed around litigants bringing petitions to the King’s Chancellor, seeking exceptions to the King’s laws. This second branch is the precursor of our present day Chancery Division of the New Jersey Superior Court. The Chancellor was considered to be the “keeper of the King’s conscience”.
In Chancery actions, parties are seeking non-monetary relief, such as an injunction or a judgment of foreclosure. In contrast, the primary relief sought in the Law Division of the New Jersey Superior Court is money damages.
The court seeks to “do equity” in Chancery actions. That includes the application of many equitable maxims in such cases, such as “Equity aids the vigilant, not those who sleep on their rights” and “He who comes into equity must come with clean hands”. A Chancery litigant will seek to argue that the facts of its particular case will merit the application of one or more equitable maxims to the litigant’s benefit.
Aside from foreclosure and suits for injunctive relief, a party may institute Chancery litigation for partition, quiet title, specific performance, reformation of instruments, receiverships, restrictive covenant enforcement, accounting, constructive trust, equitable subrogation, and dissolution of a business entity. Most cases involving real estate are filed in the Chancery Division.
The complaint in a Chancery action may be verified or unverified. Where the plaintiff is seeking issuance of an Order to Show Cause (with or without temporary restraints), the complaint must be verified. In such cases, the Chancery judge will issue the Order to Show Cause setting a date and time for the parties to appear and argue the application. Chancery judges have wide latitude in shaping relief to fit the facts and circumstances of the particular cases before them.
Mr. Whelan has over 30 years experience litigating cases in the Chancery Division. He offers a free initial consultation. Call today.
There is a basic concept in the law of due process. Part of that is that a person or entity should not be sued in a State where it has not done business. In the old days, it might be sufficient to show that the defendant never stepped foot in New Jersey and therefore is not subject to the jurisdiction of the Courts. This question is governed by the principle of reasonableness and whether the defendant has minimum contacts sufficient that he should expect to be haled into court here.
Further, the jurisdiction can be general or specific. The former is based on the defendant being answerable in New Jersey for its continuous and systematic activities here. The latter depends on the cause of action to be sued on, being based on the defendant’s minimum contacts here. In either case, the analysis is always very fact specific. The plaintiff always has the burden to prove that the court should have long arm jurisdiction based on the defendant’s contacts with New Jersey.
What if the defendant never set foot in New Jersey, but rather all of its contacts were electronic?
The Appellate Division has held that television advertising by Walt Disney World in New Jersey is sufficient to confer jurisdiction. Further, advertising in New Jersey by a Mexican hotel corporation coupled with the use by the corporation of a New Jersey marketing agent has been held sufficient. However, a New Jersey resident injured at a Mexican resort to which she was invited by her daughter who owned a time share there could not sue the resort in New Jersey under a theory of long arm jurisdiction.
Today, plaintiffs will try to argue that the use of internet advertising that reaches New Jersey residents is sufficient to confer jurisdiction over the advertiser even through the advertiser is located out of State.
Yet one New Jersey court has held that an airline’s internet page and advertisement of 800 number were insufficient New Jersey contacts to warrant long arm jurisdiction. Similarly, the Appellate Division has held that telephonic and electronic communications alone between an out-of-state employee and a New Jersey employer were insufficient to establish jurisdiction.
It is always crucial for defense counsel to consider whether our Courts have jurisdiction
over an out of state defendant, and whether an application should be made at an early stage to have the lawsuit dismissed. In that way, defendants gain the advantage of litigating these disputes on their home turf.
The New Jersey Open Public Records Act (“OPRA”) is an important litigation tool for gathering information, whether prior to suit or during the litigation process. It is particularly helpful when the dispute involves a public entity, public property or public employee.
Upon receiving an OPRA request, a public entity must respond within seven business days, which is far quicker than typical discovery response periods under the court rules.
It is critical to make an OPRA request specific. You generally cannot request an entire project file, but instead must identify the specific records within the file that you want to receive. A valid OPRA request does not require the records custodian to perform any research or analysis, nor can it ask the custodian to calculate data or answer questions. To be valid, an OPRA request must seek easily identifiable records by name, such as contracts, bills, meeting records, logbooks, emails, RFQs, vouchers or correspondence.
As mentioned above, if a request is valid, then the public entity has seven business days to respond and that response must be in writing. The response should either enclose the requested records, indicate why access to specific records is being denied, or request an extension of time to comply with the request if the request was extensive. If the records contain confidential information, the public entity may redact the confidential information but must grant access to the rest of the record. The public entity also must indicate why the redactions were made and redact as narrowly as possible.
In order to challenge a public entity’s denial of an OPRA request, the requestor may proceed by way of verified complaint and order to show cause in the Superior Court. The judge will determine in a few weeks typically whether the public entity’s denial was valid or otherwise direct the records be produced.
Experienced litigators know how to use OPRA to their best advantage in litigation matter. Contact Whelan Law today for all your Litigation attorney needs.
The Federal courts have had electronic filing for many years, both in the district courts and the bankruptcy courts. Typically, this is initiated by the attorney opening an account with the court, which gives the attorney the ability to scan and upload litigation documents on line instead of having to mail the documents to the courthouse. Also, rather than having to write a check to the court, your online account is automatically charged. With the Federal courts, typically the account is funded through the attorney’s credit card. The process makes the attorney’s work a little easier for sure. Also, the attorney receives electronic notice whenever a document is filed in the case.
The New Jersey state court system recently rolled out its own “eCourts” program. This has engendered a great deal of confusion. Not all cases can be electronically filed. Certain categories of lawsuits still need to be filed on paper through the mail. For those cases, filing fees need to be paid by check.
The various court clerks are unclear about the rules. For example, motions relating to foreign judgments cannot be filed through eCourts. However, I had two counties wrongly return motions in foreign judgment cases, claiming that I had to efile the motions. I then had to spend time finding and speaking to supervisors in order to be able to successfully resubmit the motions through the mail.
Another annoyance is the requirement that an attorney filing a motion must mail a courtesy copy to the motion judge. When eCourts was initially proposed, it promised that mailing of papers would be eliminated by electronic filing. That is clearly not the case. Also, the court does not notify the attorney to advise which judge has been assigned to handle the motion. Therefore it becomes difficult to try to send a courtesy copy of the motion as required. The court clerks have no answer for these and many other issues.
For New Jersey state court efiling, the attorney must periodically transfer funds to the account to cover filing fees. There is no automatic funding from a checking account or credit card. It is a nuisance when an attorney is filing a motion or complaint, only to find that his account balance is below the minimum required amount and that he needs to log into another system in order to transfer funds to his account, and then return to the filing of his documents.
Another hindrance is the small capacity of the New Jersey state electronic filing systems. For large filings such as summary judgment motions, the documents need to be scanned and uploaded in ten or more subparts, which is a waste of the attorney’s time. Clearly this system was underengineered.
Also, electronic notice of document filing is presently hit or miss. Sometimes we are notified and sometimes not. The cause is unclear.
Finally, there is no designed way for the attorneys who use the system to provide feedback to the state court system on needed modifications. We will likely continue to struggle through the baby steps of electronic filing in New Jersey and hopefully improvements will follow.
In a recent New Jersey Federal court decision, a judge denied Wal-Mart’s motion for summary judgment and determined that the plaintiff was entitled to a trial on his claim for personal injuries arising in defendant’s store. Specifically, the plaintiff alleged that he tripped and fell over a fishing wire which Wal-Mart employees failed to reel in from a display but rather left on the floor. The judge found that the defendant as a commercial premises owner owed the plaintiff, a business invitee, a duty to guard against dangerous conditions on the property that the owner either knows about or should know about.
However, the court also determined that due to the self service nature of the sporting goods department, it would apply the mode of operation doctrine, and found that the store had created an inherent risk that customers might mishandle merchandise.
See http://www.middlesexcountyaccidentlawyer.com/2015/09/ Therefore the plaintiff did not need to prove that the store had actual or constructive knowledge of the condition causing plaintiff’s injury, and gave the plaintiff an inference of negligence. Thus the plaintiff would have his day in court.