What Happens if a Divorce Goes to Trial?

Posted in Divorce

Many people contemplating divorce do not realize that if they are unable to reach a settlement, the result is a full trial before a judge of the Superior Court of New Jersey.

It is critical to understand what occurs during a divorce trial – and what does not occur – and to be prepared.

First, a trial is not is not like a television drama or reality show. It is a highly structured event, subject to state laws and local rules. Witnesses testify and documents such as financial statements, appraisals, and other records are entered into evidence as exhibits, subject to the New Jersey Rules of Evidence. Not all evidence or testimony is admissible as evidence at trial. The most common example is hearsay testimony; that is, testimony concerning a statement made outside of court that is being offered for the truth of the statement. Continue Reading

Should I Have an Arbitration Clause in My Construction Contract?

Posted in Construction

Although it is typical for AIA form contracts to contain arbitration clauses, as a contractor you should consider whether you should have an arbitration clause in your construction agreement. As discussed below, there are numerous factors to consider in determining whether mandatory arbitration is the preferred dispute resolution mechanism, or whether the state court system is preferred. Although arbitration may have some advantages, there are also disadvantages which must be considered rather than simply adopting the AIA form. Continue Reading

Condominium Association Cannot Collect Unpaid Fees from Lender’s Assignee

Posted in Community Associations

On June 6, 2017, the New Jersey Appellate Division ruled that a foreclosing mortgagee is not liable for unpaid condominium maintenance fees simply because it winterized the unit and changed the locks.

In the published decision Woodlands Community Association Inc. v. Mitchell, the Appellate Division reversed a trial court verdict in favor of the condominium association. The three-judge panel went onto offer guidance as to what specifically constitutes a “mortgagee in possession” of a property, a determination the judges noted required a case-by-case approach.

In this case, the lender’s assignee, defendant Nationstar Mortgage LLC, took possession of a condominium unit when the owner/mortgagor defaulted on the loan. It then winterized the unit and changed the locks. The unit owner also owed the condominium association for unpaid monthly fees and other condominium assessments. The condominium association instituted an action against the owner to recover the unpaid fees. Thereafter, the association amended its complaint to include defendant, alleging that the lender’s assignee was responsible for the association fees as it was in possession of the property.

The trial court found in favor of the association, determining that defendant was a mortgagee in possession, and therefore, liable for the maintenance fees. The trial judge reasoned that defendant held the keys, and no one else could gain possession of the property without its consent. This, the trial court held, constituted exclusive control, giving defendant the status of mortgagee in possession.

On appeal, defendant argued that changing the locks and winterizing the condominium unit did not render it a mortgagee in possession of the property.

The actions of a mortgagee determine whether possession and management of the premises have been undertaken by it. After considering case law addressing the definition of a “mortgagee in possession,” the appellate panel assessed “whether defendant exercised the necessary level of control and management over the property to deem it a mortgagee in possession.”

The panel found that the minimal efforts taken by defendant to secure its interest in the mortgaged property were not sufficient to convert it into a mortgagee in possession. Thus, defendant was not liable to the condominium association for the unpaid fees.

The panel explained that where a mortgagee has not occupied the unit, is not collecting rents or any other profits, nor making repairs, it will not be considered a “mortgagee in possession” responsible for paying condominium fees and dues. Winterizing the property and changing the locks is not the “equivalent of the multitude of actions and responsibilities undertaken by” a mortgagee in possession.

Wiretapping in the Workplace

Posted in Employment

The recent turmoil, investigation and controversy surrounding President Donald Trump’s firing of former FBI Director James Comey has thrust the issue of wiretapping into the public and political spotlight. “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!,” President Trump tweeted on May 12, 2017, suggesting that “tapes” of his private conversations with Director Comey might exist. Most recently, the White House, responding to bipartisan criticism, has been pressed to divulge whether there really are any secret recordings of the president’s private conversations with the former FBI Director. Time will tell whether the Trump Administration comes clean and whether any recordings actually do exist (and, if so, what the implications might be).

All of this commotion prompted me to think about wiretapping in the workplace and, specifically, the issue of audio recordings or, as President Trump has expressed, “tapes” of conversations secretly recorded by an employer of its employees. What types of audio or tape recordings are legally permitted in the employment environment?

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Craft Beer Wholesaler to Pay $2 M Fine to Settle Trade Practice Violations

Posted in Beer & Spirits

Attorney General Christopher S. Porrino and the Division of Alcoholic Beverage Control announced a settlement with a Hunterdon county craft beer wholesaler, resulting in a record $2 million fine for alleged trade practice violations.

The Division alleged that Hunterdon Brewing Company LLC sold draft beer tap systems below fair market prices and mislabeled the charges as “miscellaneous” on invoices to conceal them. The Division alleged that the company also ignored credit regulations for at least 700 retail customers. In addition to reviewing thousands of documents, the Division compiled sworn statements from more than two dozen retail licensees.

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Can Community Associations Regulate the Use of Drones?

Posted in Community Associations

Drones are the latest craze to hit the market and chances are someone in your community has a drone, or your community deals with a vendor that uses drones. Drones are small, unmanned aircraft that respond to the commands of a remote operator or follow a pre-programmed trajectory. They are technically known as “unmanned aerial vehicles” or “UAVs”. Initially developed by the military, drones are now available to the general public and are used by many businesses and individuals alike.

drone in sky

As drone technology develops and evolves, it is important for your Community Association’s rules to develop and evolve to protect the health, safety and welfare of residents.

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Does a Foreclosure Complaint Prevent a Community Association from Enforcing Rules and Regulations?

Posted in Community Associations

A New Jersey Chancery Court was called upon to rule whether the filing of a foreclosure complaint by a condominium association prevents the association from taking other actions to enforce its rules and regulations as they would apply to the defendant in the foreclosure action.

Specifically, a condominium association had started a foreclosure action against an owner, seeking to foreclose its liens. During the pendency of the foreclosure case, the Association decided to enforce its parking revocation policy, as set forth in the association’s Governing Documents. It sought to revoke parking privileges of the owner because of the substantial arrears.

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Ignite Restaurant Group Fires Up Chapter 11 Bankruptcy Case

Posted in Bankruptcy & Creditor's Rights

Ignite Restaurant Group (“Ignite”) filed a voluntary petition for Chapter 11 bankruptcy protection in the Southern District of Texas, Houston Division today (Case no. 17-33550). Ignite operates 137 Joe’s Crab Shack and Brick House Tavern + Tap restaurants, including three international franchise locations in Dubai. Ignite employs 8,400 people, including 2,900 full-time (both salaried and hourly) employees. Ignite’s bankruptcy schedules list $197 million in liabilities and $153 million in assets.

In its bankruptcy filings, Ignite cites to declines in comparable restaurant sales and income from operations at both Joe’s and Brick House. The company also notes that it has closed underperforming restaurants, including a location in Newark, NJ which had opened in 2013.

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NJ S181-Act Concerning Snowplow/De-Icing Service Contracts in Community Associations

Posted in Community Associations

The New Jersey state Senate passed the bill 181, authored by Senator Christopher Bateman(Hunterdon, Mercer, Middlesex and Somerset), by a vote of 35-0 on January 23, 2017.

The bill, if passed by the Assembly and signed into law by the Governor, will render void and unenforceable any indemnification/hold harmless language in a contract with a snowplow vendor. This bill will not apply to the State or any municipal government.

Passage of New Jersey Senate bill 181 will have dire consequences for community associations. Continue Reading

Foreclosure an Effective Method to Recoup Unpaid Condo Assessments

Posted in Community Associations

Foreclosure rates for residential properties continue to drop. Black Knight Financial Services reported that in 2016, the national foreclosure rate dropped by 30 percent. The first quarter of 2017 reports the lowest rate of foreclosure activity since 2006.

As the inventory of foreclosed properties lessens, housing markets will see an increase in value. Owners should start to see home values on the rise.

While foreclosure rates nationwide are the lowest they have been in 11 years, foreclosures in New Jersey remain among the top ten highest in the country. Continue Reading