Foreclosure Defendant May Not Fail to Pursue a Germane Defense and Then Sue for Fraud by Foreclosure

Adelman v. BSI Fin. Services, ___ N.J. Super. ___ (App. Div. 2018).  This case, which was the subject of Judge Koblitz’s decision today, arose out of a foreclosure action.  Plaintiff, the defendant in the foreclosure case, belatedly (after the sheriff’s sale of the property of her husband, who had died after the sale, leaving plaintiff, […]

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DCPP/DYFS Review and Permanency Hearings: The Five Outcomes

There are very few events in life that are greater seismic shifts then having a child removed from the home. Regardless of the reason that a DCPP (formerly DYFS) investigation was started there is a chance that the outcome will be a loss of communication with a child. Remember that complaints are submitted anonymously, so you may not even be aware that it's happened until they knock on your door.

The Latest Grants of Review by the Supreme Court

The Supreme Court announced that it has granted review in three more cases.  One of them is yet another case under the Open Public records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”).  The two others are criminal cases. The OPRA appeal is Ganzweig v. Lakewood Tp.  The question presented there, as phrased by the Supreme Court […]

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Another Suppression of Evidence Appeal Gets to the Supreme Court

The Supreme Court announced that it has granted review in State v. Roundtree.  The question presented, as phrased by the Supreme Court Clerk’s office, is “Did the police officers initially engage defendants in a voluntary field inquiry, or did the officers’ actions constitute an investigative detention requiring a reasonable and particularized suspicion of criminal activity?” […]

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New Appellate Division Decision Outlines Procedures for Reconstructing the Record in DV Cases

The Appellate Division recently issued a published (precedential) decision in the matter of G.M. v. C.V. providing some clarification on procedures that must be followed when a transcript is not available to serve as a record of a prior hearing.

In G.M., a domestic violence restraining order had been entered between the parties in 2004.  Fast forward to 2016, when the Defendant sought to dissolve the restraining order.  According to the Defendant, the existence of the restraining order was making it very difficult for her to find employment and, she argued, it was no longer necessary for the protection of the Plaintiff.  She alleged that the parties, who had children together, had numerous interactions over the years since the entry of the restraining order without incident, had even toured colleges with the child together and entered into a business transaction together.  Simply put, the Defendant claimed that the Plaintiff no longer feared her or had a need for the protections of the restraining order.

Significantly, domestic violence restraining orders cannot easily be dissolved.  Parties cannot simply agree to dissolve them.  Even if both parties tell the Court that they are in agreement, a judge must still hold a hearing to determine if there is “good cause” to modify or dissolve a domestic violence restraining order.  This is because, due to the nature of domestic violence and the dynamic of fear created by the aggressor, “consent” from a victim of domestic violence may not be genuine.  Rather, it may be the result of fear and manipulation or control by the victimizer.

N.J.S.A. 2C:25-29(d) requires that modifications or dissolutions of a domestic violence restraining order can only be granted by a judge who is the same judge who entered the restraining order, or “has available a complete record of the hearing or hearings on which the order was based.”  The “complete record” includes the transcript of the final restraining order hearing, which allows the Court to be familiar with the full history of domestic violence and best evaluate the victim’s continued fear of the perpetrator.

Unfortunately, in G.M., the transcript was unavailable because the audio recording of the final restraining order hearing was blank.  To do nothing would deprive the defendant of her right to due process – the court cannot just sit by and refuse to hear the issue as a result of the unavailability of a transcript.  Therefore, the Appellate Division took this opportunity to establish procedures for addressing the issue of the absence of a transcript in these hearings:

• When the transcript is available, but simply has not been provided by the moving party, this is a fatal omission and will result in the denial of the application to modify or dissolve the restraining order.
• If the moving party has documentation from the judiciary showing that the final restraining order hearing cannot be transcribed in whole or in part, the court must determine if this problem was caused by the moving party.  The Court must also determine if the transcript is totally unavailable, or if it can be recovered.
  • If there is no audio recording to transcribe or it has been corrupted, and the moving party was not the cause of this malfunction, the court must then determine if the moving party can produce evidence to establish a prima facie case that a change of circumstances exists to modify or dissolve the restraining order in the absence of a transcript.  The Court must also determine if the judge who entered the restraining order entered a detailed statement of reasons, which would allow the Court to determine if the record is complete.
  • If the Court cannot assess whether to deny the application or whether, based on the record before it, it is satisfied that there is prima facie evidence of a change in circumstances that may warrant modification or dissolution of a restraining order, then the Court must reconstruct the record of the FRO hearing, with the goal of producing a record that “provides reasonable assurances of accuracy and completeness.”

Once the record is reconstructed or there is deemed sufficient information from the available record to determine whether a change of circumstances exists warranting modification or dissolution of the restraining order, the Court can move forward with a determination as to whether good cause exists to do so.

While this case dealt strictly with the issue of domestic violence restraining orders, one can imagine other scenarios in which these procedures can be adapted where transcripts of prior proceedings are unavailable, but necessary to educate a judge about testimony given during earlier but related proceedings.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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Appellate Division Confirms that Alimony Cannot be Judicially Determined with a Formula

One of the most common question posed by clients is – how is alimony determined?  Unfortunately, there is no easy answer to that question, and it is often dependent upon the facts and circumstances of a given matter.  The law does not provide for a formula, even in the final version of the amended alimony statute that passed in late 2014, and requires that trial judges consider each of the factors outlined in New Jersey’s alimony statute (N.J.S.A. 2A:34-23(b)) in rendering an award.

As seminal New Jersey case law provides, the standard of living established during the marriage serves as the “touchstone” for alimony, with, whenever possible, the alimony award to be set at an amount that will “enable each party to live a lifestyle ‘reasonably comparable’ to the marital standard of living.”  The amended alimony statute confirms that both parties are entitled to such a lifestyle, which is often determined based on a review of the parties’ Case Information Statements, testimony and supporting financial documentation.  Experts may even be utilized to prepare what is commonly referred to as a “lifestyle analysis” to help provide a more accurate indicator of what the marital lifestyle actually was, and how expenses were divided between the parties and children, if any.

When negotiating an alimony resolution, however, practitioners often employ a so-called “rule of thumb” whereby the ultimate alimony figure is based on a certain percentage of the difference between the parties real/imputed levels of income.  Debate between practitioners in applying this approach remains alive and well, especially in high income cases where utilizing a formula may undermine the notion of ensuring that the marital lifestyle is taken into consideration.  Additionally, the formulaic approach oftentimes utilized in negotiating an alimony resolution takes into consideration the alimony deduction to be received by the payor on his or her tax returns.  With the new tax law eliminating the deduction for alimony agreements/awards reached after December 31, 2018, even this approach will likely undergo significant changes.

To that end, case law confirms that a trial judge cannot employ an income-based formula when determining an initial alimony award or modifying one previously established (even if the initial alimony award was reached in settlement based on a formula).  This principle was recently affirmed in Waldbaum v. Waldbaum, wherein the Appellate Division reversed a trial judge’s use of a formula in determining alimony in a post-divorce proceeding.  Specifically, despite generally describing the lifestyle as one of “high-class”, and analyzing the alimony factors, the trial court employed a formula utilized in the parties’ settlement agreement when alimony was first agreed upon.  In reversing the trial court, the Appellate Division held that “by setting alimony using a formula the alimony became untethered from the marital lifestyle and defendant’s needs.”  The resulting alimony amounts had “no reasonable correlation to the evidence adduced regarding the marital lifestyle or needs.”

Thus, while reaching an alimony resolution provides parties with great flexibility in determining the award, a trial judge must follow the above-detailed requirements to ensure that the lifestyle is not only taken into consideration, but that all statutory factors are considered in rendering a final decision.

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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The Four Major New Jersey Courts

Nobody wants to spend more time than they have to in a New Jersey court of law. Usually if you’re fighting a speeding ticket or have a similarly small violation you’ll spend a few hours in a Municipal court and not have to think about it again. For most this is the only part of the judicial system they well ever have experience with. There are three other main courts that have far fewer cases but are every bit as important when it comes to shaping the legislative landscape of the garden state.

Judge DeAlmeida is Temporarily Assigned to the Appellate Division

Chief Justice Rabner has announced that Judge Patrick DeAlmeida is being temporarily assigned to the Appellate Division.  The assignment runs from January 16, 2018 “until further order.”  Judge DeAlmeida “shall serve on such Part(s) as ordered by the Appellate Division Presiding Judge for Administration.”  There is a slot for an unnamed “Temporary Assignee” on Part […]

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Joint Employer: Still a Potential Threat

With the recent news out of Washington that the Department of Labor has withdrawn Administrator’s Interpretation 2016-1 (its previous informal guidance on joint employment under the Fair Labor Standards Act (“FLSA”)), and with the National Labor Relations Board pulling back the broad joint employer standard set in the 2015 Browning-Ferris Industries of California, Inc. case, many are under the impression that the joint employer storm has passed.

While these are certainly welcome developments, franchisors should be careful not to dismiss the threat of joint employer liability too quickly. This is particularly true if you have outlets located in Maryland, Virginia, North Carolina, South Carolina, and/or West Virginia.

On January 8, 2018 the U.S. Supreme Court rejected DirecTV’s certiorari petition to review a ruling handed down in January 2017 by the Fourth Circuit Court of Appeals (the federal appellate court for Maryland, Virginia, North Carolina, South Carolina and West Virginia).

The case, DirecTV LLC v. Marlon Hall was decided in tandem with another case, Salinas v. Commercial Interiors, Inc. Both cases involved the FLSA, the Act that governs things such as minimum wage and overtime (hotbeds for litigation).

The Court determined that joint employment exists when two or more persons or entities are not “completely disassociated” with respect to a worker such that they “share, agree to allocate responsibility for or otherwise codetermine – formally or informally, directly or indirectly, – the essential terms and conditions of a worker’s employment…” (emphasis added). Among the factors to be considered when making this determination is “whether, formally or as a matter of practice, the putative joint employers jointly determine, share or allocate the power to direct, control or supervise the worker, whether by direct or indirect means…” (emphasis added).

By refusing to grant certiorari, the Supreme Court is essentially allowing the Fourth Circuit’s test to prevail as precedent in the jurisdictions where it governs. While the joint employer standard set by the National Labor Relations Board was alarming for franchising, it only covered claims under the National Labor Relations Act (“NLRA”) and (unless your system is one that has a unionized workforce) chances are that your system is likely at greater risk of a suit under the FLSA than the NLRA.

Therefore, even if you do not currently have an outlet in one of the states mentioned above, you should still be diligent in your practices, particularly if you plan to expand into one of those states. This includes carefully reviewing your training programs, your policies, and all documentation provided to franchisees, including your Operations Manual and any form documents.

Additionally, you should avoid becoming involved in any human resources disputes or otherwise communicating directly with employees of your franchisees. When in doubt, err on the side of caution and seek counsel to ensure you are keeping your brand out of the headlines for the wrong reasons.

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62 Years Since Appeal of Pennsylvania R. Co., a Key Case on Leave to Appeal

On this date in 1956, the Supreme Court issued its opinion in In re Pennsylvania R. Co., 20 N.J. 398 (1956).  Along with Romano v. Maglio, 41 N.J. Super. 561 (App. Div. 1956), discussed here, this opinion remains a leading authority regarding motions for leave to appeal. The case involved a discovery dispute, specifically, the […]

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Do You Qualify to Plea by Affidavit?

From grocery shopping to picking up the kids, our day-to-day existence is a never-ending battle for more time. Going to court to fight a traffic ticket is just another thing that is stopping you from spending time doing the fun things in life. It's a dilemma, wanting to protect your insurance rates by fighting the ticket but not wanting to spend valuable time in a court.

Workers Compensation: When You Need a Lawyer

Accidents happen, it's one of life's unfortunate truisms. Accidents also happen in our workplaces even with every precaution in place. Just sitting behind a desk on a keyboard all day there is a potential, however slight, to be injured as a result of your employment.

Government “Cannot Erect Technological Barriers to Deny Access to Government Records That Were Previously Available Under OPRA”

Conley v. New Jersey Department of Corrections, ___ N.J. Super. ___ (App. Div. 2018).  This was an appeal brought by a pro se prisoner under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”).  He sought certain monthly reports from the Department of Corrections.  He had been able to get those reports in the […]

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Videotaped Deposition May be Replayed During Summation

Hayes v. Delamotte, ___ N.J. ___ (2018).  Today saw the issuance of the Supreme Court’s first opinion of 2018.  The case, a personal injury matter arising out of an auto accident, was a procedural mess.  In summary, however, plaintiff lost after a jury trial, which featured an attempt by her counsel to play during summation […]

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The First Step Toward Rejection of a Dubious Consumer Fraud Act Defense

All the Way Towing, LLC v. Bucks County International, Inc., ___ N.J. Super. ___ (App. Div. 2018).  Today’s opinion by Judge Fisher reaffirms a fundamental principle: on summary judgment, a court must view the facts most favorably to the opponent of the motion.  The panel in this case found that the Law Division failed to […]

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Litigation: Much More Than a Courtroom Drama

For the most part, anyone reading this post can accurately and succinctly describe what a lawsuit is. Hundreds of hours of film and television are dedicated to the inherent drama that plays out between two opposing forces. Yet there's much more to the legal process besides screaming "I object" at a frowning character actor in black robes. The textbook definition describes it as “a case in a court of law involving a claim, complaint, etc., by one party against another.” Put like this it sounds like a simple process, a few hours and everything is solved, everyone goes on with their lives. However as so many things in life, a lawsuit is rarely so simple. It involves many steps before, during, and after it. These steps as well as many other legal procedures fall under the umbrella of 'litigation.'

A Split Appellate Division Decision About the Charitable Immunity Act: On to the Supreme Court?

Green v. Monmouth University, ___ N.J. Super. ___ (App. Div. 2018).  Today’s opinion by Judge Leone affirmed summary judgment in favor of defendant Princeton University under the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11 (“the Act”).  Judge Ostrer joined in that opinion, which applied the de novo standard of review.  Judge Fisher, however, dissented.  The […]

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The Supremes Clarify the Legal Definition of Harassment When It Comes to “Purely Expressive Activity”

The word “harassment” is one of those terms I hear all the time as a family law attorney.  I have had complaints from clients that their spouse made a mess of the house just to “harass” them.  Or, I have had adversaries who intentionally misconstrue every single dispute between our clients as “harassment.”  It is just one of those hot-button words that everyone likes to use so much, that there are times when I wonder whether it has lost all meaning with judges and other family lawyers.

Merriam-Webster defines the word “harassment” as follows:

1.  a: Exhaust; fatigue; b: 1) to annoy persistently; 2) to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.
2. to worry and impede by repeated raids.

And maybe making a mess around the house in order to drive your wife crazy or picking fights about what to feed the children, who last filled the car up with gas, or who is responsible for paying the nanny this week is harassment as Merriam-Webster defines it.

But when we start bandying about this word to one another before the Court and in the context of family law litigation, there is a legal definition that applies and that we should all be mindful of before labeling what is simply domestic contretemps as legally actionable harassment.

A person commits the criminal act of Harassment when:

[. . .] with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.  Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.  Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

N.J.S.A. 2C:33-4.

Thus, to be legally actionable, the “harassment” must meet the above criteria. In the recent matter of State v. Burkert, the New Jersey Supreme Court addressed subpart (c) of this definition of harassment. The Court in Burkert found that – where the alleged harassment is based on purely expressive activity – a liberal reading of subpart (c) may run afoul of the First Amendment right to freedom of speech, which guarantees protection of speech even if it is offensive in nature.

In Burkert, the “purely expressive activity” had to do with the Defendant super-imposing some very, uh, colorful, language on a photograph of his co-worker’s wife and circulating it at work.  There was no question this act was committed “with purpose to alarm or seriously annoy” Burkert’s co-worker.  At the same time, to find Burkert guilty of harassment for engaging in this speech would run afoul of his First Amendment Protections.  No matter how offensive speech may be, it is generally protected barring a risk to one’s reasonable expectation of privacy or safety.

In order to reconcile First Amendment Protections with subpart (c) of the statute, then, the Court held the following:

Therefore, for constitutional reasons, we will construe the terms ‘any other course of alarming conduct’ and ‘acts with purpose to alarm or seriously annoy’ as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

While State v. Burkert is a criminal case, it is important for all family law practitioners and any individual considering obtaining a domestic violence restraining order based on harassment to take heed of Burkert.  In cases where a restraining order is sought based on allegations of harassment, the plaintiff must prove that harassment has occurred as defined by the above statute.  Therefore, the Court’s narrow construing of subpart (a) of the statute is critically important to those seeking the protections of a domestic violence restraining order based on harassment.

Practically speaking, then, what does this ruling change?  Well, it ensures that speech alone cannot be the basis of a harassment crime or of a domestic violence alone.  For example, if your spouse called you by an expletive instead of by your name 100 times in a 48 hour period, it might fit the Merriam-Webster definition of harassment, but it won’t fit the new definition of harassment under subpart (c), unless combined with harassing conduct and / or speech that reasonably makes you fearful for your life, or intolerably interferes with your reasonable expectation of privacy.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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“Equitable Powers” Do Not Justify Entry of a Domestic Violence Restraining Order Absent Supporting Evidence

M.C. v. G.T., ___ N.J. Super. ___ (App. Div. 2018).  Judge Fisher used no more words than necessary in his five-page opinion on this appeal.  Plaintiff filed a complaint against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, alleging that defendant had harassed her.  After a trial, the Family Part ruled […]

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10 Retailers to Watch for a Bankruptcy Filing in 2018

2017 represented one of the busiest years for Chapter 11 retail bankruptcy filings. Many companies that filed have successfully emerged, like Payless. Yet, some are still questionable as to their future, such as Toys “R” Us, which is expected to begin selling a number of their leases and company owned real estate this quarter.

As the New Year begins, here are 10 retailers to watch for a possible Chapter 11 bankruptcy filing this year:

1. Sears Holdings has been listed as a possible bankruptcy filing for a number of years. (Although Sears Canada did file for bankruptcy last year.) With the sale of its Craftsman tools and closing of more stores, just how long can the company avoid the inevitable?
2. Bon-Ton is one of a number of stores that Moody’s rated with debt ratings of ‘Caa’ or lower (which represents anywhere from “substantial risk” to the potential for total default on a bond). A filing could be expected in first quarter 2017.
3. Guitar Center is the world’s largest retailer of musical instruments. It has about a year and a half to refinance more than $900 million in debt scheduled to mature in 2019, according to USA Today.
4. General Nutrition Centers (“GNC”) shares fell more than 18% in November. GNC recently retained investment bank Goldman Sachs to help it analyze alternatives. With its competitor Vitamin World recently using the Chapter 11 process to rid itself of unfavorable leases, GNC is a likely candidate to do the same in 2018.
5. Finish Line looks to be continuing the sporting apparel bankruptcies as it continued to close stores in 2016 and 2017, according to indystar.com.
6. Crew reported a 12% sales drop for third quarter and said it will close dozens of stores by the end of January 2018, according to CNN Money.
7. Claire’s Stores, Inc. has very high outstanding debt. As of Oct. 28, it had cash and cash equivalents of only $25.8 million, down $5.4 million from the previous quarter and had $71 million drawn on its credit facility.
8. Bi-Lo is the parent company of grocer Winn-Dixie. Although it survived a 2009 bankruptcy filing, like the similar grocer A&P’s second bankruptcy case, the chain appears in dire straits with about $1 billion in debt.
9. Payless Part 2? Although Payless completed its bankruptcy proceedings earlier this year, shedding stores and cutting debt, the company still faces the same challenging market conditions that forced it into bankruptcy.
10. Neiman Marcus, the Dallas-based luxury retailer’s faces e-commerce competition and changing consumer preferences. Moody’s noted the company’s hired of a financial adviser to evaluate “strategic alternatives.”

If you are an owner, developer, and/or landlord it is important to know and understand how these changes will affect your shopping center. Stark & Stark’s Shopping Center and Retail Development Group can help.

Our attorneys regularly represent owner, developer and/or landlord throughout the country, in leasing, buying/selling, 1031 Exchanges, refinancing, as well an enforcement activities. One of our primary areas of focus is national bankruptcy representation for owners, developers, and/or landlords.

Currently, our team is providing value-added services to landlords in a number of Chapter 11 cases including: Charming Charlie, Macaroni Grille, Rue 21, Payless, EMS and Eastern Outfitters (aka “EMS Part II”), Gander Mountain, Golfsmith, RadioShack, General Wireless (aka “RadioShack Part II), Fairway Market, A&P, Joyce Leslie and Sports Authority.

For more information on how Stark & Stark’s Shopping Center Group can assist you, please contact contact the author of this blog.

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Creditor Who Seeks Turnover of Funds From Joint Account Must Show That Funds in That Account Belong to the Debtor

Banc of America Leasing & Capital, LLC v. Fletcher-Thompson, Inc., ___ N.J. Super. ___ (App. Div. 2018).  Judge Koblitz kicked off 2018 with a concise opinion that expresses an important legal rule: a creditor of an individual debtor may not obtain turnover of funds in a joint account unless the creditor establishes that the funds […]

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Who Can Be a Redeveloper of Property in New Jersey?

One of the questions that I am frequently asked is, “Who can develop property in a redevelopment area?”

As discussed below, redevelopment can be done by anyone, subject to restrictions discussed below, and is not necessarily restricted to just large scale developers.

A redeveloper is defined by New Jersey’s Local Housing and Redevelopment Law (the “LHRL”) as “… any person, firm, corporation, or public body that shall enter into or propose to enter into a contract with a municipality or other redevelopment entity for the redevelopment or rehabilitation of an area in need of redevelopment…”.

Thus, for a redeveloper to make use of the LHRL, a municipality must have first declared a property or properties as an area in need of redevelopment.

N.J.S A. 40A:12A-3 of the LHRL defines a redeveloper as anyone who makes contact with or is contacted by a municipality to redevelop land. A municipality has extremely broad authority to designate a private redeveloper after the enactment of a redevelopment plan.

Significantly, designating a redeveloper does not require any type of proposals/requests from the redeveloper. However, a municipality cannot designate a person or entity a redeveloper prior to its enactment of a redevelopment plan.

Moreover, there is no formal procedure to be designated a redeveloper. Typically, it is done via a resolution by the governing body of the municipality.

After naming the redeveloper, the next step is that the redeveloper and municipality enter into a written agreement setting forth the various parties’ rights and obligations. While not discussed here, there are several mandatory requirements that must be contained in a redevelopment agreement between the municipality and redeveloper for that agreement to be enforceable and valid. However, the redevelopment agreement may contain other terms that are integral to the proposed redevelopment project.

The next question often asked is, “Can someone develop property in a redevelopment area, even when there is a redevelopment plan, without being deemed a redeveloper?”

The answer is yes. A property owner who owns real estate in a redevelopment area may still develop its property, but that person’s rights may be limited by a restriction contained in a redevelopment plan or redevelopment agreement. However, that person is not technically a redeveloper. Such development is often referred to as a little “r” redevelopment because the developer is acting outside of the scope of a redevelopment agreement.

For further information, please do not hesitate to contact the author of this blog.

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