Residential Mortgage Foreclosure Mediation Program is Meant to Produce Enforceable Settlements, and the Supreme Court Enforces Such a Settlement

GMAC Mortgage, LLC v. Willoughby, ___ N.J. ___ (2017).  In 2008, recognizing the effects of the financial crisis on New Jersey homeowners, our Supreme Court established the Residential Mortgage Foreclosure Mediation Program.  The Program was intended to foster mediated resolutions that would result in restructuring loans to avoid foreclosure.  Today’s opinion by Justice Albin focuses […]

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Practice Pointers From the Colorado Court of Appeals

I have an oral argument coming up in the Colorado Court of Appeals, the intermediate state appellate court there.  That court offers some helpful tips about oral argument, under the headings of “Advance Preparation,” “Being Persuasive,” and “Some Things to Avoid.”  Those practice pointers, available here, are equally applicable to oral arguments in our New […]

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Are There Alternatives to Traditional Divorce?

Traditional fault divorce is generally viewed as a time consuming, expensive, and very public way to end a marriage. Couples who once shared homes, finances, and families suddenly find themselves as adversaries, fighting to divide the life they built together. Finances, and families, are often shattered by divorce. Divorce arbitration has been used for many years to resolve various legal issues.

Divorce attorneys are increasingly viewing arbitration as a viable alternative to a court divorce trial. Divorce arbitration can help couples avoid a time-consuming, expensive, public trial in return for the efficiency, privacy, cost-effectiveness, and informality of arbitration.

Divorce arbitration helps couples retain control over life decisions, limit expenses, and prioritize their children’s well-being.

Divorce arbitration is a structured process that in some ways is similar to a court room divorce but with more control retained by the parties themselves. Divorcing couples are powerless to alter the structure of a court room proceeding. Nor can they choose the judge who will hear the case. However, parties to a divorce arbitration can set up the structure, timing, and location of the arbitration from the outset, and can choose the arbitrator. The parties agree in advance as to which issues will be arbitrated, whether and how the rules of evidence will apply, and the manner that the proceedings will be recorded.

The arbitration itself involves testimony of witnesses and the submission of documents into evidence. At the conclusion of an arbitration hearing, the arbitrator will usually render a decision within 30 days. A typical court room divorce often continues for several weeks or months.

Divorce arbitration is recognized by the New Jersey Supreme Court as an effective method of dispute resolution that provides an alternative to conventional divorce litigation. Unlike a court schedule, the parties to a divorce arbitration schedule the dates of the arbitration sessions. Instead of court dates scheduled in different weeks over a period of weeks or months, scheduling arbitration sessions results in more convenience, fewer lost work days, and a speedier resolution.

When choosing divorce arbitration, the selection of the arbitrator is crucial. A family law attorney who has been certified as a divorce arbitrator by the American Academy of Matrimonial Lawyers (AAML) can use his or her family law experience and knowledge to thoroughly decide the issues outlined by the parties.

Stark & Stark partner John Eory, an AAML-certified divorce arbitrator, is offering free, open-to-the-public divorce arbitration seminars. If you are interested in learning more about divorce arbitration, two seminar dates are offered for your convenience. The seminars will take place Stark & Stark’s Lawrenceville, New Jersey office. Please click on one of the dates below to register.

• Thursday, August 24, 2017 @ 5:30pm
• Thursday, September 28, 2017 @ 5:30pm

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Another Accutane Decision, and a Big Win for Plaintiffs

In re Accutane Litig., ___ N.J. Super. ___ (App. Div. 2017).  [Disclosure:  I was one of the counsel who argued this appeal for the successful plaintiffs].  This must be Accutane week.  On Tuesday, Judge Fisher’s panel issued a 100-page opinion, discussed here, which reversed a decision of the Law Division under the New Jersey Product […]

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The Appellate Division Addresses the Noerr-Pennington Doctrine

Main Street at Woolwich, LLC v. Ammons Supermarket, Inc., ___ N.J. Super. ___ (App.  Div. 2017).  The Noerr-Pennington doctrine, which originated in two cases from the Supreme Court of the United States, holds that those who “petition the government [for] redress are generally immune from antitrust liability when defending against antitrust claims predicated on this […]

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Shoplifting Charges in New Jersey: What You Need to Know

Shoplifting -- the act of stealing goods from a store while pretending to be a customer -- is one of the most common crimes in the United States. Though shoplifting may seem like a victimless crime, especially if the goods stolen were from a major corporation, the consequences of a conviction can follow you for the rest of your life. Shoplifting charges can also result in a loss of employment as well as a permanent criminal record.

Defendant Who Fails to Timely Serve Notice of Tort Claim Cannot Sue Public Entity for Contribution or Common Law Indemnification

Jones v. Morey’s Pier, Inc., ___ N.J. ___ (2017).  Under the New Jersey Tort Claims Act, N.J.S.A. 59:8-8, a tort plaintiff who fails to timely serve a notice of tort claim on a public entity is barred from suing that entity.  Until today, the Supreme Court had never decided whether a failure of a defendant […]

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Accutane Plaintiffs Overcome the “Super-Presumption” That FDA-Approved Warnings About Drugs are Adequate

In re Accutane Litig., 2017 WL _____ (App. Div. July 25, 2017).  [Disclosure:  I argued for the successful plaintiffs in one of these two consolidated appeals, the one that involved the NJPLA.]  The New Jersey Product Liability Act, N.J.S.A. 2A:58C-4 (“NJPLA”), creates a presumption, which the Supreme Court has labeled a “virtually dispositive” “super-presumption,” that […]

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Ex Post Facto Constitutional Issues, Workers Compensation Jurisdiction, and Municipal Land Use Are Added to the Supreme Court’s Docket

The Supreme Court has granted certification to review three more appeals.  The first of those actually consists of four cases that have been consolidated under the lead case, State v. Hester.  The question presented in that case, as phrased by the Supreme Court Clerk’s Office, is “Do the Ex Post Facto Clauses of the United […]

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Appellate Court’s View That Merits of a Case Are Weak Does Not Justify Abandoning Deferential Standard of Review of Trial Level Discovery Rulings

Capital Health System, Inc. v. Horizon Healthcare Services, Inc., ___ N.J. ___ (2017).  These two consolidated cases involved rulings on discovery disputes, a subject that rarely reaches the Supreme Court.  Four Justices did not participate, so the Court deciding this case consisted of Chief Justice Rabner, Justices LaVecchia and Albin, and Judges Fuentes and Fisher.  […]

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Piercing the Corporate Veil: An Anniversary

July 21, 1983 saw two very important opinions from the Supreme Court.  One of them, Application of Matthews, 94 N.J. 59 (1983), was the first major opinion regarding a Committee on Character issue.  That case was discussed, indirectly, here. The other decision, State v. Ventron, 94 N.J. 473 (1983), was and still is the leading […]

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Are Free Elections Guaranteed in New Jersey’s Planned Communities?

Governor Chris Christie recently signed a bill that changes how elections in Fair Lawn’s Radburn neighborhood are run — which will impact the approximately 7,000 common interest communities in New Jersey. The so-called “Radburn Bill” changes how residents are elected to Radburn’s board of trustees.

Radburn is one of the oldest planned real estate developments (PREDs) in the United States. There are approximately 3,100 people residing in Radburn. The development includes 469 single-family homes, 48 townhouses, 30 two-family houses and a 93-unit apartment complex. Radburn was created in 1929 as a “Town for the Motor Age,” and includes 18 acres of parks, a shopping plaza, and an elementary school. In Radburn, founders attempted to create a self-sufficient community.

As provided for in the original deed restriction, the Radburn Association governs the community and maintains its common properties  –  and only current and former trustees are considered members of the Radburn Association. Thus, only 40 homeowners (or fewer) out of approximately 1,300 homeowners, acquired member status. The Radburn Association’s nine-member board of trustees had sole power to nominate candidates to run in elections. That effectively disenfranchised 97 percent of Radburn homeowners.

Several years ago, a dispute arose concerning the board member election process. Residents complained about the process, claiming it was secretive and undemocratic and that candidates were vetted and kept off the ballot by a small group of former and current trustees. Residents brought attention to a secret sale of recreational property. Equally troubling were reported discrepancies between expenditures reported to residents and the amounts filed with the IRS.

The Radburn Association board levies annual assessments, manages common land, sets policies, and controls architectural alterations. For years, the Radburn Association systematically claimed it was not a homeowners’ association and refused to grant any rights to homeowners, including financial disclosure.

In November 2006, a group of Radburn residents filed a lawsuit against the Radburn Association, claiming that Radburn’s governance violated New Jersey state law and the New Jersey State Constitution. The Superior Court ruled against them in part, finding that Radburn’s governance was legal, as well as its membership. The court ordered the Radburn Association to comply with the law by providing full financial disclosure to residents and amending its bylaws to allow open trustee meetings four times each year.

The finding in Moore v. The Radburn Association, Inc. that the New Jersey Planned Real Estate Development Full Disclosure Act (PREDFDA) does not provide membership in governing associations for all homeowners was upheld on appeal. The New Jersey Supreme Court declined the petition for certification, leaving in place the Appellate Division’s decision, which allowed homeowner associations to limit membership to a select group of homeowners.

Senate Bill 2492 was proposed in response to the finding that the PREDFDA does not guarantee free elections in planned community developments. Now signed into law, P.L 2017, c.106 remedies the situation, providing membership in governing associations to all homeowners. The new law allows, among other things, that any unit owner may run to serve on the board, allows members to self-nominate, provides for electronic notice, requires at least 14 days and no more than 60-days-notice of election meetings, and allows for proxy and absentee ballots. The new legislation also addresses procedures for addressing bylaw amendments.

The new legislation applies to all common-interest communities in New Jersey, such as condo associations and co-ops. The new law requires associations to consider all unit owners members, entitled to run to serve on the board overseeing the community’s finances and policy.

If you have any questions about this new legislation and how it affects your association, please contact the author of this blog or your association’s attorney.

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The New Jersey False Claims Act Does Not Apply to Claims Made in Connection With State Tax Laws

State ex rel. Campagna v. Post Integrations, Inc., ___ N.J. Super. ___ (App. Div. 2017).  The New Jersey False Claims Act, N.J.S.A. 2A:32C-1 to -18 (“NJFCA”), encourages lawsuits by private parties, known as relators, in the interest of the State of New Jersey, to help the State recoup monies wrongly taken from or not paid […]

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It’s ABA Web 100 Time

The ABA Journal’s annual list of top legal blogs, previously known as the ABA Blawg 100, has been expanded this year to cover such things as law firm websites and other law-related things, so it is now known as the ABA Web 100.  Readers of this blog who are interested in being “amici” (the ABA […]

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A Big OPRA Opinion From Chief Justice Rabner

North Jersey Media Group, Inc. v. Lyndhurst Tp., ___ N.J. ___ (2017).  Due to the amount of administrative duties that attend the office of Chief Justice of the Supreme Court of New Jersey, Chief Justices traditionally have not authored as many opinions as Associate Justices do.  But when Chief Justices write, it is often an […]

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Spokeo Again Fails Defendants at the Third Circuit

Susinno v. Work Out World, Inc., ___ F.3d ___ (3d Cir. 2017).  Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), discussed here, was a case in which class action defendants put great stock.  They hoped to use it to defeat cases based on lack of “concrete” injury.  The Third Circuit, however, has repeatedly rebuffed those […]

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A Statute of Limitations Issue of First Impression in a Privacy Case

Smith v. Datla, ___ N.J. Super. ___ (App. Div. 2017).  This opinion by Judge Geiger was his first published opinion since his elevation to the Appellate Division.  It involved the applicable statute of limitations for each of three distinct claims that all arose out of a statement by defendant, plaintiff’s doctor, about plaintiff’s HIV-positive status […]

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An LAD Opinion From the Supreme Court in a Disability Discrimination Case

Grande v. Saint Clare’s Health System, ___ N.J. ___ (2017).  Today’s unanimous, scholarly opinion by Justice Solomon, with an equally scholarly concurring opinion by Jsutice LaVecchia, arose from an appeal as of right in this Law Against Discrimination (“LAD”) case.  The Appellate Division split 2-1 as to whether there were genuine issues of material fact […]

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A Res Ipsa Loquitur Case for the Supreme Court

The Supreme Court announced today that it has granted review in McDaid v. Aztec West Condominium Association.  The question presented in that appeal, as phrased by the Supreme Court Clerk’s Office, is “Does the doctrine of res ipsa loquitur (a Latin phrase meaning ‘the thing speaks for itself’) apply to plaintiff’s claims for injuries resulting […]

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Life Estates in Real Property Are Subject to Principles of Equitable Subrogation

Ocwen Loan Services, LLC v. Quinn, ___ N.J. Super. ___ (App. Div. 2017).  The doctrine of equitable subrogation provides that “a refinancing lender whose security turns out to be defective is subrogated by equitable assignment to the position of the lender whose lien discharged by the proceeds of [a] later loan, there being no prejudice […]

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No Property Tax Exemption for Disabled Veteran Whose Injuries Did Not Occur “In a Theater of Operation”

Fisher v. City of Millville, ___ N.J. Super. ___ (App. Div. 2017).  Article VIII, section 1, paragraph 3 of the New Jersey Constitution allows the Legislature to enact legislation that grants tax exemptions to veterans.  The Legislature has done that, providing (as one available option) a property tax exemption to honorably discharged veterans who have […]

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The General Assignment Order for 2017-18

Today, the 2017-18 General Assignment Order issued by Chief Justice Rabner was published.  It is available here. Judge Messano continues as Presiding Judge for Administration, and Judge Sabatino remains the Deputy Presiding Judge for Administration.  The Presiding Judges of the eight Parts of the Appellate Division are the same as last year, except that Judge […]

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Farewell to the Appellate Division’s Civil Pro Bono Program, But ….

Those of us who have handled pro bono appeals in the Appellate Division received notice from that court today that its Civil Pro Bono Program is being suspended.  The notice stated that “[d]ue to changes to the judiciary website the link to the pro bono cases is no longer active.  In addition, changes to security […]

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Can a Transgender Minor Legally Change His or Her Name?

In a case of first impression in New Jersey, the mother of a 16- year-old minor has been granted the right to legally change his first name from Veronica to Trevor. The court’s decision in the matter of Sacklow v. Betts was approved for publication on June 28, 2017 which gives it enhanced status in the legal community.

Because the case involves a minor child and his parents share legal custody – and disagree to some extent as to whether he should be permitted to change his name from Veronica to Trevor – the court exercised its role as parens patriae. In doing so, the court made its own findings of fact to determine to whether the name change is in Trevor’s best interests.

The court’s ruling focused upon whether the proposed name change is in the best interests of the child given the application of the following factors:

• the age of the child,
• the length of time the child has used the preferred name,
• the existence of any anxiety or embarrassment that may result from the child having a name he or she believes does not match his or her gender identity,
• the history of any counseling the child has received,
• the name the child is known by in his or her family, school, and community,
• the child’s preference and motivations for seeking the name change, and,
• whether both parents consent to the name change or the reason for withholding consent.

In reaching its decision the court relied on a wide body of social science research which will no doubt continue to influence future cases involving transgender issues.

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A Treatise on Personal Jurisdiction From Judge Lihotz

Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, ___ N.J. Super. ___ (App. Div. 2017).  Issues of personal jurisdiction crop up fairly frequently, despite New Jersey’s settled principle of applying personal jurisdiction to the outer limits of what due process allows.  Today’s opinion by Judge Lihotz contains an exhaustive discussion of specific vs. general jurisdiction, […]

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As the Summer Months Begin, the Supreme Court Takes Three More Cases

The Supreme Court announced on Friday that it would review three more cases.  One of those is before the Court as of right, due to a dissent in the Appellate Division.  In the other two cases, the Court granted certification. The appeal as of right is in Ferrante v. New Jersey Manufacturers Ins. Group.  The […]

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