Frequently Asked Questions About Defending Eminent Domain Actions Filed by Pipeline Companies

Does a private pipeline company have the right to file a lawsuit to take private property to build a gas pipeline?

Under the Natural Gas Act, a pipeline company can apply to the Federal Energy Regulatory Commission (FERC) for a Certificate of Public Convenience and Necessity. If FERC issues the Certificate of Public Convenience and Necessity and the pipeline company meets many other conditions, it can obtain the power take private property.

If a lawsuit is filed to take my property, how do I know I have been sued and how do I get a copy of the complaint?

To take property using the power of eminent domain, a pipeline company must first file a lawsuit with the court and serve the complaint upon each defendant, including the property owner. After the complaint is filed with the court, a process server (usually a private company) must “serve” the complaint by handing the complaint to the defendant or someone who lives at the home where the defendant resides. The court rules allow for other means of service (i.e., publication), but this is the standard manner for service.

If I get served with a complaint, what are my options?

The three main options are:

1. Answer the complaint and object to the taking;
2. Decide not to file an answer and just participate in the valuation part of the case; and,
3. Do nothing and allow the pipeline company to win by default.

If you answer, the answer must be timely and complete.

When the complaint is served, you should receive a “summons” and “notice of condemnation” that has a deadline to answer the complaint. Generally, you have 21 days from the date of service to file an answer or objection to the taking. The answer must:

1. Identify the property in which the defendant claims an interest;
2. State the nature and extent of the interest; and,
3. State all the defendant’s objections and defenses to the taking.

If you do not answer, you can still participate at the trial or hearing on compensation and may present evidence on the amount of compensation to be paid. However, all other defenses will be waived if no answer is filed.

If you do absolutely nothing and do not appear at the trial or hearing to determine the amount of just compensation to be paid, you will most likely have your property taken and be paid the amount referenced in the complaint (i.e. the valued determined by the pipeline’s appraiser). In short, the pipeline company takes your property by default.

Do I need a lawyer to defend?

Individuals are not required to have a lawyer represent them. However, the process to defend an eminent domain case can be challenging. Some courts have sample pro se answers and limited instruction. See the United States Courts website for more.

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Getting out From Under Debt’s Thumb with Chapter 7 Bankruptcy

If you heard that someone recently filed for bankruptcy an old friend or coworker maybe. That information may instinctively be changing your opinion of them, questioning how responsible this person could possibly be. Bankruptcy has the massive stigma of a big life failure because of our popular understanding of the word. Bankruptcy, unlike how it's portrayed in TV and the movies, is not at all as bleak or hopeless as they make it seem. For every case of schadenfreaude we experience, there's a family down on it's luck finally seeing the light on the otherside.

What You Need to Know about Weapon & Firearm Charges

New Jersey has extremely severe penalties for firearm and weapon violations that are harsher than those of many other states. A weapons conviction can significantly decrease your chances of attaining employment, impede your ability to gain entry to schooling or find housing.

Where Purported Forum for Arbitration is Non-Existent, Arbitration Agreement Will Not be Enforced

MacDonald v. Cashcall, Inc., ___ F.3d ___ (3d Cir. 2018).  There have been some outlandish circumstances in decisions involving arbitration, especially in the class action context.  But the facts of today’s case, a putative class action in which Judge Shwartz wrote a wise opinion for a unanimous Third Circuit panel, takes the cake.  Applying a […]

The post Where Purported Forum for Arbitration is Non-Existent, Arbitration Agreement Will Not be Enforced appeared first on Appellate Law NJ Blog.

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Smile for the Camera, and other Family Law nightmares

You never know when or where the next video camera or recording device  is going to show up. And when you’re in the middle of a contested divorce, particularly if there are custody issues, caution is key. I was reminded of this recently when a local news channel reported on complaints against Amazon delivery drivers who had thrown packages at  customers’ doors. The drivers had been caught because the homeowners had set up video cameras to monitor anyone coming up to the front door.

A 2 minute Internet search provides countless options for a shopper who is looking to set up some type of surveillance on practically anyone. Hidden cameras (and not so hidden cameras), GPS devices  and sound recorders have come a long way. The reality is that any litigant has to assume that the person on the other side of a matter is going to use any and all available methods to win their case.

Some real time examples:  a case in which a recovering alcoholic looking to regain custody of her son was video photographed in a bar with a glass of wine; a father looking for shared custody certified in court documents that his live-in girlfriend was not a smoker just to have his soon-to-be ex-wife provide the court with pictures of his girlfriend is smoking (which had been taken from his Facebook page). In another example, a client receiving alimony was captured with a live-in boyfriend based upon a small camera that had been placed on the telephone pole across the street from her house. A “friend” of a woman seeking alimony taped a phone call in which the woman admitted she had a secret stash of thousands of dollars.  All of these images or recordings were admissible in court proceedings and were used against the litigants.

When involved in litigation, particularly in family type situations, the sad reality is that people have to assume that they are being photographed or recorded practically at all times. This is time to be the best version of yourself and as hard as it may be, refrain from doing and saying things that can hurt your position.  Even if you are you are speaking or with a confidant.

That being said, the reality is that people do and say things that in retrospect they wish they hadn’t. When this happens, immediately advise your attorneys so damage control can commence.  Better you have control of the situation, no matter how bad.

 

 

Jennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

 

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Payable on Death Designations for IRA and Non-IRA Accounts

After a person passes away, their assets are typically divided into probate assets, which are assets which pass through the Estate, and non-probate assets, which are assets which pass outside of the Estate.

Probate assets are those to which a beneficiary is not specified, and thus, the assets become part of the Decedent’s Estate.

Non-probate assets those in which a direct beneficiary is specified by the instrument itself, and therefore, these assets pass outside of the Estate.

Traditionally, an IRA, a joint bank account, and other investment vehicles are considered non-probate assets provided the beneficiary designation or survivorship designation is properly executed.

In a recent Appellate Division Decision, the Court reviewed what would take place if an account which required a post-death designation within the instrument had not been properly executed. In this matter, the Executrix of the Estate sought to have the subject account pass outside of the Estate due to the fact that it was the type of account which would typically pass outside of the Estate if properly executed. In reversing the position of the Executrix, the Court noted that although a designation was required under the account, since no such designation existed the asset must therefore pass through the Estate. As a result, the account passed through the Estate and was subject to any additional taxes, as well as distribution pursuant to the Will.

The practical result of this decision is to highlight that when designating beneficiaries for IRA accounts, the appropriate designations must be executed clearly and be updated as necessary. Otherwise, such accounts may unknowingly pass through the Estate rather than being treated as a non-probate asset.

Should an individual have any questions concerning whether an asset is either probate or non-probate, it is suggested that they consult with an experience estate planning attorney.

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You've Been Pulled Over and You've Been Drinking, What Happens Next?

With the invention of ride sharing apps such as Uber and Lyft you would think that DUI’s would be practically nonexistent in a heavily populated state like New Jersey. Not to mention the numerous forms of public transportation, which have their limitations of course. Unfortunately, the Simon Law Group still sends out more than a hundred DUI letters a week to offer our services. Some of this has to do with living in more remote areas of the state with a lack of public transportation and the aforementioned ride sharing apps. Although regardless of where you live it's important to be aware of when you've had too much to drink and not get behind the wheel of a motor vehicle for your safety and the safety of everyone else on the road.