New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

On May 20, 2009, Congress passed a credit card holders' "Bill of Rights" that will enact sweeping new restrictions on the credit card industry and provide numerous protections for consumers. Treasury Secretary Timothy Geithner said that the bill would "create a more fair, transparent and simple consumer credit market." This bill comes as no small relief to consumers and home owners battered by the current economic crisis.  When a condominium unit owner is faced with the decision of paying his maintenance fees or dealing with credit card balances that have rocketed skyward due to penalties and late charges, this bill provides a respite in the storm. President Barack Obama is expected to sign the bill into law within days. The bill was designed to combat abuses that Sen. Richard Shelby of Alabama, the top Republican on the Senate Banking Committee, identified as, "Card issuers raise rates for unclear reasons, use billing methods that consumers do not understand, and assign fees and charges without warning.”
 
According to Consumers Union, publisher of Consumer Reports, what follows is a list of some of the key provisions of the bill:

Enhanced disclosure requirements
 

• Periodic statements must clearly state the required due date and late payment penalty.
• Credit Card issuers must disclose the period of time and total interest it will take to pay off a card balance if only minimum monthly payments are made.
• Credit Card issuers must provide 45-day written notice before raising APR or before making any other significant change to the card agreement.

First twelve months of new card
Credit Card issuers are restricted from raising interest rates in the first twelve months after a credit card account is opened, except:

• When the increase is under a variable interest rate agreement.
• At the end of the promised time period for a promotional rate. For example, the Credit Card issuer can offer 5 percent for eight months and then 12 percent after that. (The promotional period must be at least six months.)
• If the required minimum payment is not received within 60 days after the due date.

Existing balances
Credit Card issuers cannot raise interest rates on existing balances unless:
 

• The increase is under a variable interest rate.
• It is the end of a promised time period for a promotional rate.
• The required minimum payment is not received within 60 days after the due date.

Notice of future rate hikes
After the first twelve months, the Credit Card issuer can only raise the rate on future purchases upon providing 45 days notice of the increase. No notice is required for increases due to one of the reasons stated above.
 

Paying off under old terms
Credit Card issuers can’t change the terms for repaying a balance, except that the Credit Card issuer may give the cardholder either five (5) years to pay off the outstanding balance at the old rate; or an increased minimum payment that has no more than twice as much of a contribution to paying down the balance as the old minimum payment.
 

Limits on fees and penalties
 

• If the interest rate is increased because the minimum payment is not received within 60 days after the due date, the rate must go back to the original lower rate if the consumer makes on-time minimum payments for six months.
• An over-the-limit fee may be imposed only once per billing cycle if the balance is above the limit on the last day of the cycle.
• Credit Card issuers who increases the interest rate must review the account every six months and decrease the rate if indicated by the review.
• Two-cycle billing is prohibited. Credit Card issuers cannot reach back to an earlier billing cycle when calculating the amount of interest charged in the current cycle.

These new restrictions and protections are expected to dramatically change the way Credit Card issuers treat consumers. These changes should create an environment wherein consumers can better understand and interact with Credit Card issuers.

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Selling a home and wondering what physical conditions at the premises need to be disclosed to a potential new buyer?  Everyone wants to present a positive picture of their home, especially during a slow real estate market.  But it is usually in a seller’s best interest to thoroughly disclose any defects which are not readily observable.

Most residential resale properties are sold in “as is” condition.  This is usually intended to mean that the buyers have a right to make whatever inspections they seek and the sellers are not responsible after closing for any conditions later discovered by the buyers.

However, selling a home “as is” does not mean that a seller can deliberately misrepresent the condition of the property.  Sellers may be liable for common law fraud if they make a material misrepresentation of any present or past fact which they know or believe to be false, they intend the buyer to rely on, the buyer does rely on it and damages result.  The Jewish Center of Sussex Cty. v. Whale 86 N.J. 619, 624-25 (1981).  In such instances, a buyer may be entitled to rescind or terminate their contract with the seller, or may seek damages from the seller.

Our New Jersey courts have defined misrepresentation to include the failure to disclose certain conditions.  In Weintraub v. Krobatsch 64 N.J. 445 (1974) the buyers inspected a home during the day and found it acceptable.  Prior to closing, however, the buyers visited the property when it was dark and were astonished to discover that the house was heavily infested with crawling insects.  The buyer refused to close.  When the litigation which later ensued reached the New Jersey Supreme Court, the Court held that a seller is not only liable to a buyer for affirmative and intentional material misrepresentations, but also for non-disclosure of defects known to a seller, unobservable by buyers, and where the facts not disclosed would be of significant materiality to the buyers’ decision to purchase.  In such situations, a buyer would be entitled to rescind their contract.

Thus, our courts have indicated that sellers risk a contract being rescinded, or incurring liability for damages, if sellers do not disclose a defective condition which is 1) latent, 2) not reasonably observable to the buyer and 3) significant to the buyer’s decision to purchase Correa v. Maggiore 196 N.J. Super. 273 (App. Div. 1984).

Real estate brokers have similar responsibilities concerning disclosure issues. In addition to possible claims of common law fraud, realtors may also be subject to the New Jersey Consumer Fraud Act N.J.S.A. 56:8-1 et seq.  Under the New Jersey Consumer Fraud Act, a real estate broker representing a seller of a home previously occupied may be liable (in addition to affirmative acts of misrepresentation) for acts of non-disclosure of a defective condition if the condition was known to the broker, but not readily observable to the buyer.  Strawn v. Canuso 140 N.J. 43, 58-59, 65 (1995). (Subsequent to this decision, a statute was passed to address disclosure obligations for newly constructed residential real estate.  N.J.S.A. 46:3C-1 et seq.)  In instances of non-disclosure, it must be shown that the broker knowingly concealed a material fact about the premises with the intention that the buyers would rely on the concealment.  N.J.S.A. 56:8-2, Leon v. Rite Aid Corp. 340 N.J. Super. 462, 469 (App. Div. 2001).

Other examples of failure to disclose conditions which created liability for sellers or realtors and which have been addressed in New Jersey court cases include:

• Failing to disclose that a tennis court would be constructed on an adjoining property.  Tobin v. Paparone Construction Co. 137 N.J. Super. 518 (Law Div. 1975).
• Concealment of a defective septic system.  DiBernardo v. Mosley 206 N.J. Super. 371 (App. Div. 1986) cert. denied 103 N.J. 503 (1986).

In response to the potential pitfalls involving disclosure issues, most real estate brokers now provide sellers with an extensive disclosure form to complete and sign.  This form is then provided to potential buyers.  Completing this form accurately and thoroughly helps to protect the seller (and the realtor) from claims of misrepresentation or non-disclosure.

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Bill Singer, Shareholder in Stark & Stark's Securities group, was quoted in the May 20, 2009 Forbes.com article Our See-Sawing Markets: The Dow Jones industrial average just ended a streak where it alternated up and down for 13 sessions. Here's what it means. 

Mr. Singer comments on the 13 trading sessions, which began May 1st and ended May 20th, in which the Dow Jones industrial average failed to hold a streak for longer than one day. Over the course of the 13 days, the markets were up one day, then they were down the next, and vice-versa. You can read the full article online here.

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Stark & Stark Community Associations Group Co-Chair, A. Christopher Florio, will present at seminar for the Pennsylvania and Delaware Valley Chapter of the Community Associations Institute entitled, New Jersey Council: Assessments and Collections. The seminar will be held Friday May 29, 2009 at the Holiday Village Community Services Association in Mt. Laurel, New Jersey.

The seminar will cover the all-important topic of assessments and collections in New Jersey’s common interest ownership communities. Topics to be covered include an extensive overview of collections procedures and applicable state law, how to handle collections when owners are in bankruptcy or facing foreclosure and tips on developing a collections policy for your community.

You can access additional information online here.

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Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment Litigation group, was quoted in the May 7, 2009 Dow Jones article, BROKER'S WORLD: Brokers Fight Bonus Repayment - And Lose. The article discusses the recent rise in companies enforcing the repayment of signing and retention bonuses. Mr. Lewis states that, "Enforcement proceedings...are becoming even more common as brokers move to different companies and cash-strapped brokerages try to grab whatever money they can."

You can read the full article online here. (PDF)

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Stephen M. Lasser, a Partner in Stark & Stark's Condominium and Co-op Practice Group, presented materials to Board Members on the collection remedies available to condominiums and homeowners associations, in conjunction with David J. Byrne, Partner and Co-Chairperson of Stark & Stark's Condominium and Co-op Practice Group, during a seminar hosted by ASSOCIA/River Management.  The presentation was held at the Samuel Morse Historic Site, Poughkeepsie, New York on Wednesday, May 6, 2009. 

Mr. Lasser focused his presentation on the practical and legal considerations involved with filing liens, commencing lawsuits for money judgments, sheriff and foreclosure sales and collecting rent from tenants residing in non owner occupied units.  Mr. Lasser also discussed pending laws, which will affect condominiums and homeowners associations, and how the courts in New York have applied the Business Judgment Rule to condominium and homeowner association boards. Mr. Byrne presented materials related to collections and the impact of various federal and New York on community associations (you can listen to Mr. Byrne's portion of the seminar here).

You can listen to Mr. Lasser's portion of the seminar here. 

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David J. Byrne, Partner and Co-Chairperson of Stark & Stark's Condominium and Co-Op Practice Group, presented materials related to collections and the impact of various federal and New York laws on community associations, in conjunction with Stephen M. Lasser, during a seminar hosted by ASSOCIA/River Management, for the benefit of association board members.  The presentation was held at the Samuel Morse Historic Site, Poughkeepsie, New York on Wednesday, May 6, 2009. 

Mr. Byrne focused his presentation on the way community association boards, and management, can ensure payment of assessments, maintenance fees, and carrying charges without resort to counsel.    Mr. Byrne also discussed the impact of the United States Fair Housing Act, the United States Bankruptcy Code and the United States Telecommunications Act of 1996 on community associations.  He discussed as well the impact of New York's Human Rights Law on community associations.  Mr. Lasser focused his presentation on the practical and legal considerations involved with filing liens, commencing lawsuits for money judgments, sheriff and foreclosure sales and collecting rent from tenants residing in non owner occupied units (you can listen to Mr. Lasser’s portion of the seminar here).

You can listen to Mr. Byrne's portion of the seminar here.

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Shareholders from Stark & Stark's Litigation group will hold a free seminar entitled Litigation Strategies For Business Wednesday June 24, 2009 at 9:00 AM in the firm's Lawrenceville office. Join Stark& Stark's Litigation attorneys as they assist you in developing a strategic plan that minimizes the impact commercial litigation has on your business. Stark & Stark's team of commercial litigators hold decades of experience prosecuting and defending complex claims of copyright and trademark infringement, breach of contract, fraud, theft of trade secrets, and unfair competition.

In the Litigation Strategies For Business Seminar you will learn how to develop a litigation strategy to be employed in any type of commercial lawsuit including:

• Assessing both the benefits and risks of litigation
• Pursuing insurance coverage
• Determining when and whether to seek a negotiated resolution to litigation
• Developing strategies for less expensive dispute resolution alternatives including mediation and arbitration
• Managing and planning the cost of litigation
• Taking necessary steps to protect your business' interests

The seminar is free, however, registration is required. Please contact Kelly at (609) 791-7030, or by email: Kelly@stark-stark.com to register.

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Ever wonder who first held official title to what is now known as New Jersey? Although Native Americans were living here at the time, the British Crown originally laid claim to the lands in this state in 1663.  In June 1664, King Charles II made a land grant to his brother, James, Duke of York, which included the lands in New Jersey.  Three months later, the Duke of York conveyed his interest in these lands to his two friends and supporters, John, Lord Berkeley and Sir George Carteret.  These gentlemen became the original proprietors of New Jersey. 

Berkeley later sold his share of the lands to others.  In 1676, the successors to Berkeley’s interests and Carteret signed an Agreement dividing the colony into East and West Jersey.  The portion originally owned by Carteret became East Jersey and the portion originally owned by Berkeley became West Jersey.  These two provinces each came to be ruled by a Board of Proprietors who represented owners of fractional shares of each province.  Subsequent transfers of title to these lands were made by the Board of Proprietors and then subsequently by those who had been granted title and their successors in interest.

As recently as 1998, certain remaining lands in East Jersey were purchased by the New Jersey Department of Environmental Protection.  However, no such agreement was entered into for any remaining West Jersey lands.  As a result, it is possible that when researching title to property once located in West Jersey that the research may lead to the West Jersey Board of Proprietors as owners. 

Some lands in New Jersey were also acquired from Native Americans.  For example, the Newark area was purchased from Native Americans in 1667.  In 1669, Carteret purchased some lands from Native Americans as well.  However, by 1758, any remaining land or claims to lands by Native Americans were extinguished by a treaty between the Native American tribal chiefs and then Governor Bernard on behalf of the British Crown and the colonists. 

There has been some controversy as to the actual location of the Division Line between East and West Jersey.  This resulted in three separate dividing lines - each originating near Little Egg Harbor and traversing the State on a diagonal, ending at varying points in northwest New Jersey depending on which line is followed.  One of the lines, known as the Keith Line, has been perpetuated by parts of Province Line Road here in Mercer County.

After the division of the New Jersey lands into the provinces of East and West Jersey, the provinces were later subdivided over time into counties.  There were only eight original counties; four in East Jersey and four in West Jersey.  The original counties of East Jersey were:  Bergen; Essex; Middlesex; and Monmouth.  Out of these counties came Hudson (from Bergen), Passaic (from parts of Bergen and Essex), Union (from Essex), Ocean (from Monmouth), Somerset (from parts of Middlesex and Essex) and Mercer (from parts of Burlington, Middlesex and Somerset).

West Jersey’s original counties were: Burlington; Cape May; Gloucester; and Salem.  Out of these counties came Atlantic (from Gloucester), Camden (from Gloucester), Cumberland (from Salem), Hunterdon (Burlington), Morris County (from Hunterdon), Sussex (from Morris) and Warren (from Sussex).   

As a result of the emergence of newer counties from the older ones, when researching a title to a property, it is sometimes necessary to search title records from a predecessor county from which the newer county originated.  So for example, if one goes back far enough in the title of a Mercer County property, one may have to visit the County Clerk’s office for Burlington, Middlesex, or even Essex counties.

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The New Jersey Child Support Guidelines require that one party be designated as the Parent of Primary Residence.  In most situations, the Parent of Primary Residence is clear.  However, in shared parenting time arrangements, neither parent is technically Parent of Primary Residence,  because the parties have equal overnight parenting time with the children.

Why does this designation matter?  Because the New Jersey Child Support Guidelines state that child support is divided into three categories: fixed expenses (representing 38% of the child support obligation), variable expenses (representing 37% of the child support obligation), and controlled expenses (representing 25% of the child support amount).

Fixed expenses are incurred by both parents despite whether the child is residing with the parent at that time.  These costs include housing-related expenses, such as mortgage, rent, utilities, and furnishings.  Variable costs are also incurred by both parents and are only incurred by a parent when the child is with the parent.  These expenses include transportation costs and food. 

The third and last category of a child support award is “controlled expenses.”  These expenses include clothing, entertainment, and personal care.  While the Child Support Guidelines recognize that both parents incur fixed and variable expenses, the guidelines presume that only the Parent of Primary Residence incurs controlled expenses, and apportion controlled expenses between the parties based on their income shares.

In Benisch v. Benisch, the Appellate Division recognized that, in true Shared Parenting Time Arrangements, the New Jersey Child Support Guidelines are unfair because both parties are incurring “controlled costs” for the child, but the Guidelines only give this credit to the Parent of Primary Residence.  The Guidelines therefore result in the payor paying these expenses as child support, and again to the child during their own parenting time.  The Court in Benisch recognized that an adjustment to the payor’s child support obligation was needed to correct this oversight, and remanded the case to the trial court to determine said adjustment.  However, the Court in Benisch failed to set forth a specific formula for making this adjustment. 

Thus, until recently, divorce attorneys have had little guidance from the Court regarding this adjustment.  However, Deffler v. Deffler sets forth a specific formula for adjusting the payor’s child support to take into account that both parents pay controlled expenses.  In a well-written opinion, the trial court judge outlined a three- step formula to make the necessary adjustments.  First, the basic child support amount should be multiplied by the payor’s income share.  Second, that figure should then be multiplied by 25%, which is the amount of the child support obligation attributable to the controlled expenses.  Third, that figure is then subtracted from the payor’s “Adjusted Basic Child Support Amount.” The result of this opinion is that the controlled expenses are “backed out”from the payor’s child support obligation, so they no longer incur these expenses twice.

This opinion clarifies a previously ambigious area of family law, and gives divorce attorneys and courts alike much needed guidance in calculating child support in shared parenting time arrangements.

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What recourse, if any, does a property owner have when the government relocates a tenant to a new property in anticipation of acquiring the first property by eminent domain, but subsequently decides not to take the property?  The answer depends on the length and terms of the lease.
 

The Appellate Division of the Superior Court of New Jersey recently affirmed a trial court’s decision finding that the property owner was without recourse when its tenant was relocated and the New Jersey School Construction Corporation (“NJSCC”) decided not to acquire the property.  R.A.R. Development v. Associates v. New Jersey Schools Constr. Corp., 2008 WL 2663403 (N.J. Super. A.D. 2009).  In this particular case, NJSCC targeted a property for acquisition in order to build a new school.  After making an offer to acquire the property but before filing a condemnation complaint, NJSCC agreed to relocate a commercial tenant located at the property in question.  Since the relocation was going to take more than one year at a cost of approximately $5 million, NJSCC did not want to wait for the condemnation complaint to be filed before starting the relocation process.  When the move was almost complete, NJSCC decided not to acquire the property.  The property owner was extremely upset since it lost a tenant occupying over 100,000 square feet of space.
 

The property owner filed a lawsuit against the NJSCC alleging several causes of action, including tortuous interference with contractual and economic advantage, estoppel and inverse condemnation.  In terms of the tortuous interference claims, the court found that the NJSCC acted in good faith and pursuant to its statutory rights since New Jersey law permits the relocation of tenants prior to acquiring property by eminent domain (subject to certain requirements).  In terms of the estoppel argument, the court found that the property owner did not rely to its detriment on any representations of the NJSCC concerning the relocation of its tenants.  Finally, the court dismissed the inverse condemnation claim finding that the lease was at the end of its term (1 month remaining at the time the tenant completed its move) and the tenant had paid all rent due through the term of the lease.  In rejecting the property owner’s agreement that it was entitled to compensation for the taking of its renewal option, the court held that a “landlord’s expectation that the tenant will exercise the right of renewal does not confer on the landlord a recognized property interest subject to just compensation for its taking.”
 

The property owner in this case was harmed, but without recourse.  When negotiating with a condemning authority, one must keep in mind that New jersey law allows a condemning authority to change its mind at various stages of the process with little regard for the property owner’s rights.

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Stark & Stark Real Estate, Zoning & Land Use Shareholder, Vincent J. Mangini, was a featured panelist for the New Jersey Law Journal's May 4, 2009 Green Building in New Jersey Roundtbale discussion. Green building is a rapidly growing, complex and evolving field which requires hard-to-come-by expertise. Mr. Mangini joined with several real estate and green building attorneys who understand these issues, and joined together in order to offer their insights.

Mr. Mangini states, "Green building is defined in a number of ways, depending on the context. The Environmental Protection Agency defines it as “creating structures and using processes that are environmentally responsible and resource-efficient throughout a building’s life cycle, from siting to design, construction, operation, maintenance, renovation, and deconstruction.”

You can read the full roundtable discussion online here. (PDF)

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It is an eventuality that virtually all of us will face sometime during our lives, the loss of a loved one.  Whether this loved one is one of your parents, a sibling, a relative, or a friend, litigation may arise concerning the Probate of their Will in order to administer their Estate.  Estate litigation is often emotional, costly and is similar in the emotions it evokes to that of a divorce proceeding.  Often times, the Executor of the Estate may use the Estate’s assets to defend the Will.  On the other hand, a contestant of the Will must often pay their own counsel fees with only a possibility of being reimbursed by the Estate.  As such, a person challenging a Will should first evaluate the value of the Estate and their potential gain as compared to the expenses they may incur in seeking that relief .  In addition, a party should consider the emotional trauma which is very prevalent in Estate litigation.  An Executor of the Estate or beneficiary whose bequest is being challenged has no other alternative than to defend against the challenge being brought against their interest or a challenge against the Will itself. 
 

In the State of New Jersey, there are essentially two ways in which an individual may challenge a Will.  The first way is to allege that the decedent lacked the requisite capacity the date the Will was executed.  This is a fairly low standard to meet, as the decedent need only be aware that he/she possesses assets, and in addition, that he/she wishes to transfer these assets to certain other individuals.  In levying a challenge in this regard, the Court may review medical records and other information concerning the decedent’s physical and mental health in order to determine if this individual possessed the requisite mental capacity on the day the Will was executed.  The medical records are relevant as they may demonstrate physical or mental conditions which could suggest that the decedent may have lacked the capacity to execute a Will on the date the Will was executed.  This often involves the need for expert witnesses to review medical records, and thereafter, to render their opinion as to the capacity of the decedent on the date the Will was executed. 
 

The other way in which an individual may challenge a Will concerns an allegation of undue influence.  Simply put, undue influence means that the Will does not reflect the true intentions of the decedent, but instead, reflects the wishes of an individual who asserted their influence over the Testator, thereby rendering the Will inconsistent with the Testator’s true wishes.  In order to prove a claim of undue influence, the contestant must first establish that there existed a confidential relationship between the decedent and the party which is alleged to have unduly influenced the Testator.  A confidential relationship exists when the Testator and another individual shared a relationship where trust or confidence is naturally reposed by the decedent with this individual.  Another instance under which a confidential relationship arises is in an attorney/client relationship where there is a fiduciary relationship between the parties. 
 

Once the contestant of the Will has established the existence of  a confidential relationship, he/she must establish suspicious circumstances with regard to the creation and execution of the Will.  Once this has been achieved, the Court can shift the burden of proof upon the proponent of the Will to demonstrate the validity of this document. 
 

After a lawsuit has been commenced, the Court will often recommend that the parties consider mediation in an attempt to resolve the matter without the need for additional litigation.  Often, the parties are able to resolve the litigation through Mediation without the parties incurring additional expenses.  If a case cannot be resolved through mediation, the case will move forward through discovery, and thereafter, to Trial.  Once an Estate litigation matter is scheduled for Trial, the parties should be aware that the Trial will not be heard before a jury, but rather is decided by a Chancery Judge that hears probate matters.  Once the Judge renders his/her decision, either side may make an application for fees to the Estate. 
 

If the party prevails in contesting the Will, the Will could revert to a previous Will, if said document still exists, or the individual could be deemed as having died without a Will.  Thereafter, the Court may appoint an independent Executor if the named Executor is disqualified.  If the Will is not invalidated by the Court, then it will be probated in the manner which had been sought to be probated by the Executor originally.  Thereafter, the Estate litigation will conclude.

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The Mercer County Bar Association (MCBA) officially announced John S. Eory, of Stark & Stark's Divorce Group, as its recipient of the Mercer County Professional Lawyer of the Year Award.  The award will be formally presented at the Mercer County Bar Association General Membership “Beefsteak” honoring retiring Judges from the Mercer Vicinage on Thursday, May 21, 2009, at 6:00 p.m. at The Firkin Tavern, Parkway Avenue, Ewing, New Jersey.

The Professional Lawyer of the Year Award is given to someone who is well-recognized for character and competence; someone who is respected by all and looked upon as a role model of appropriate professional behavior.  John Eory is known and regarded throughout the community and legal profession for his exemplary conduct and character.  He is a positive role model and his good deeds serve to focus favorable public attention to the legal profession. An Awards Ceremony will be held in September at the New Jersey Law Center in New Brunswick where John will be recognized for his achievement.
 

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On March 2, 2009 I wrote a blog discussing the Senate Economic Growth Committee's approval of a bill for conversion of Age-Restricted Communities. As expected over the past several weeks, Governor Corzine conditionally vetoed the bill providing for conversion of age-restricted residential properties (commonly referred to as the 55+ bill). The conditional veto would adopt the bill upon 2 conditions:
 

1) Amend the bill to require a firm 20% set-aside for affordable housing (COAH or Mt. Laurel Housing) as opposed to the 20% being a cap on the amount of affordable housing; and
 

2) Granting municipal boards discretion to decline a conversion if they are not satisfied that the conversion will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zone ordinance. 
 

The bill now requires the legislature to amend the bill in accordance with the foregoing requirements.  A copy of the Governor's Conditional Veto is available online here.

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Currently, a large number of cases against bisphosphonate manufacturers have been designated as Mass Tort or Multidistrict Litigation (MDL) cases. Mass Tort cases (in State courts) and MDL’s (in federal courts) are methods of organizing and managing cases involving the same or similar injuries and common defendants. These methods of case management offer an expedient, cost-effective manner for the plaintiffs to pursue their claims.

Stark & Stark’s Mass Tort/Pharmaceutical Litigation Team pursues claims against drug manufacturers so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. If you feel you have experienced any of the above side-effects from taking bisphosphonates, you can contact Stark & Stark and speak to one of the Mass Tort/ Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against bisphosphonate manufacturers.
 

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On April 9, 2009, the  New Jersey Supreme Court reversed the decision of the Appellate Division in a case analyzing a condemning authority’s obligation to reimburse a property owner for legal fees and expenses in a condemnation case.  Township of West Orange v. 769 Associates, LLC, ___, N.J. __  WL. 962687 (2009).  The New Jersey Supreme Court held that a property owner is entitled to reimbursement of his or her attorney fees and expenses as a matter of right once a condemnation complaint is filed and later abandoned by the condemning authority.  More importantly, New Jersey Supreme Court held that the property owner may recover attorney fees and other professional fees incurred  prior to the complaint being filed providing the attorney fees and expenses are directly related to the government’s efforts to acquire the property.  In this particular case, the Court found that the date of the accrual of the right to recover attorney fees and expenses was the date the Township adopted an ordinance authorizing the municipality to acquire the property by eminent domain.  The New Jersey Supreme Court also discussed the criteria to be used by a court in evaluating the amount of attorney fees and expenses to be awarded.
 

This is a very important case for property owners since it makes it clear that attorney fees and expenses can be recovered in the event the government files a condemnation action and later abandons the taking.  However, if a property owner spends a substantial amount of time and money negotiating with the condemning authority and the complaint is never filed, there is no right to recover attorney fees and expenses.  A complaint must be filed.  In addition, property owners may now look to recover attorney fees and expenses incurred prior to the filing of the complaint providing the attorney fees and expenses are directly related to the taking of the property and are incurred after the property is targeted for condemnation.

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Bill Singer, Shareholder in Stark & Stark's Securities group, was quoted in the April 19, 2009 New York Post article Caught in the Currency. The article discusses the recent rise in online foreign-currency trading in the wake of steep losses in the stock and housing markets. Mr. Singer cautions traders to be aware of who they are trading against. Mr. Singer states, "They could be trading against professional traders with a lot of research, charts and sophisticated computer programs -- and these pros could fleece them."

You can read the full article here. (PDF)

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A case decided by the New Jersey Appellate Court on April 14, 2009, Brown v. Brown, reminds us of the significance of telephone recordings and emails in regards to divorce cases. There is a misconception among many people that it is illegal to tape record telephone conversations. It is not if you are a party to the call; as opposed to wiretapping a conversation to which you are not a party. That case it is illegal under both Federal and State law.


In Brown , Mrs. Brown with the knowledge and, perhaps, advice of her attorney tape recorded a telephone conversation with her husband. The conversation was then used to convict the husband of an act of domestic violence resultant from the "expletive laden" conversation.


Many, many times clients come to us with a handful of rambling, threatening or, at best, harassing emails from their spouses. Common courtesy and civility should dictate against threatening or harassing communications. But, in the emotions of marital strife things sometimes are said that are far better left unsaid.


A word to the wise: Once said it is a permanent record. Assume that every email you write will be shown to the Judge and that every telephone call with your spouse is being recorded. You have absolutely no right to privacy or confidentiality of a conversation or email you have had with or sent to your spouse.


Realize, also, that once written or recorded almost every communication can be retrieved. The delete button is no protection and once recorded (on an answering machine or during a conversation) the words can not be taken back.

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Many commercial tenants are facing a severe downturn in revenue, which often equates to not paying their monthly rent.  Sometimes, commercial landlords can work with a delinquent tenant by offering more favorable terms or concessions.  Reduction in the cost per square foot or placing rental arrears on the backend of a lease can be solutions to keeping a store active by that tenant.  However, sometimes legal action is required to protect a commercial landlord's rights and value of the space.

Suing a tenant to retake possession of the premises is only half the battle.  In New Jersey, commercial landlords can evict a tenant through a summary dispossess action (aka "eviction") for non-payment of rent or other covenant defaults.  Once a judgment of possession is entered, the next step is to actually evict the tenant.  If the tenant will not peaceable move after entry of the judgment of possession, then a landlord can request a warrant for removal be issued by the sheriff. 

Once the warrant is issued, the commercial landlord needs to be prepared to fulfill the eviction process.  Often this means figuring out what to do with "stuff" left behind at the store.  Tenants sometimes leave everything from trash to copiers to inventory to personal items. But what exactly can the commercial landlord do with these items?  Can you simply toss out this "stuff"?  Can you sell these items? What if the tenant shows up and demands its items back a month or two after the tenant has been evicted?

The New Jersey Abandoned Tenant Property Act (N.J.S.A. 2A:18-74) is a commercial landlord's solution for disposing, selling and/or returning items left by a tenant.  Under the New Jersey Abandoned Tenant Property Act, a commercial landlord is required to give written notice before disposing or selling a tenant's left over items.  

Following is a quick list of questions to ask your attorney about adherence to the New Jersey Abandoned Tenant Property Act, as well as some other issues to address.
 

1.  What Type of Notice Needs to be Provided?   The New Jersey Abandoned Tenant Property Act provides specific provisions for sending written notice to tenants before disposing or selling items.  Failure to adhere to these strict guidelines could leave the commercial landlord with liability to not only the tenant, but also third parties who may possess liens or have an interest in the abandoned property (i.e. equipment leases).  But, which address does notice need to be sent - the premises? the tenant's prior address? Further, is the landlord required to conduct a search for other addresses?
2. Does Notice Have to be Sent to Third Parties?  Beside the tenant's property left at the premises, there may be other entities with an interest in the property, including employees, creditors, financial institutions or leasing companies.  Has your attorney conducted a UCC search to determine if there are liens on these items?  If so, have you provided these entities appropriate notice?   Further, has the notice directed the tenant to inform third parties of the abandonment?
3. Can You Just Sell Valuable Abandoned Property? Although the New Jersey Abandoned Tenant Property Act provides for disposition of the tenant's property after appropriate notice, can the landlord collect any removal, storage, attorney fees, and/or other costs associated with the items?
4. What About Perishable Items or Trash?  Often upon re-entry, commercial landlords  find the premises with trash or perishable items.  Can the landlord simply throw these items away or does notice need to be sent first?
5. Do any Federal or State Statutes Preempt the Commercial Landlord's Actions?  Your attorney should be able to advise if any Federal or other State statutes effect your rights. For instance, are there any environmental issues that need to be addressed prior to disposal of the left over items?
6. What if the Tenant Shows Up During the Notice Period?  Often tenants will just leave the items left over for the commercial landlord to handle.  But what if the tenant shows up?  Can the commercial landlord charge them storage fees before the remove the items?  What about collecting all rents due and owing, including attorneys fees?

Prior to disposing, selling or giving the left over items back to the tenant or third parties, it is advisable that a commercial landlord review these and many more questions with a licenced New Jersey attorney.  Answering these questions beforehand can help you with the proper strategy to deal with troublesome tenants and keep your commercial property(s) profitable in these cautious economic times.

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Studies show that the most commonly reported side-effects of bisphosphonate treatment are: 1) Osteonecrosis of the Jaw; and 2) low-trauma bone fractures.

What is Osteonecrosis of the Jaw?
Studies show that Osteonecrosis of the Jaw (ONJ) or Bisphosphonate Osteonecrosis of the Jaw (BONJ) is a disease where the jawbone does not heal from injury. This disease has also been known as Dead Jaw, Fossy Jaw or Phossy Jaw. Usually, the disease is prefaced by a simple dental procedure or other trauma to the jawbone. Thereafter, the jaw quickly becomes infected and all or a portion of the jawbone can actually die and/or fracture and be painfully thrust through the skin and gums.

What are low-trauma bone fractures?
Studies show that low-trauma bone fractures generally occur as a result of a fall from standing height or less, where the bone breaks in an unusual, horizontal pattern. Such fractures have been found to generally occur in the femur (thigh) bone. However, bone necrosis and bone brittleness have also been reported to have been found, though much more rarely, in other parts of the body.

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The disposition of personal property located in the former marital residence is often overlooked in settlement discussions. This issue of who gets to keep the “comfy green couch” may seem trivial when you are in the midst of spending countless hours negotiating an alimony award or a complicated custody arrangement.  However, without properly addressing this issue, it is very easy to get caught up “in the trees” and allow disagreements regarding personal property to stall further economic or custody negotiations.
 

It is even more dangerous when attorneys fail to give full treatment to the issue and put in language into a final Marital Settlement Agreement, such as; “The parties will divide up their personal property to their joint satisfaction”.  Newsflash - people who are getting divorced, will more than likely not be able to sit down at the dinner table and dibby up the good china!
 

So what do you do to avoid a post-judgment application regarding Aunt Eva’s Forman Grill that was given to your client as an engagement gift? 
 

The best tip I can offer is to begin dealing with the issue of personal property at the outset of the litigation.  I often have my clients develop a list of personal property and have them place a good faith value on said items.  The next step is to develop a roster of items that your client wishes to retain and identify what items the other spouse will more than likely request (sentimental value...etc).  Once I have reviewed the prepared list, I will then send over an initial distribution plan to the other side.  If there are valuation concerns, sending the proposed list early in the case allows plenty of time to work out a proper distribution method with opposing counsel.   
 

If the former marital residence is going to be listed for sale, it is critically important to establish a proper timetable for the parties to remove belongings from the residence so the real estate listing can move forward.  The removal of belongings is often a sensitive issue, as one spouse may not feel comfortable with the other party having access to the former residence.  To ease these concerns, work with your attorney to identify a neutral third party to be present and can take inventory of the retrieved goods when the removed spouse returns to the residence.  The involvement of an agreeable third party, along with an identified time frame/scope for the retrieval of your client’s belongings should help smooth this often turbulent process.
 

Another issue that often arises concerns the disposal of personal property that is unwanted by both parties.  While some clients would like to place their spouse’s belongings in a trash bag and place it on the curb, it is important to realize that there could be some identified value on personal goods that are no longer desired by the parties.  Have your attorney get in touch with opposing counsel and identify a list of goods that both parties wish to mutually dispose.  Consider your options, donating old clothing or furniture may produce a nice tax deduction that will benefit the parties.  Additionally, there are many disposal companies out there that will pay you cash for your “worthless items”.  This money can be split between the parties, or placed in a custodial account for your children.  If a moving company is necessary to dispose of these items, both parties will more than likely be responsible for sharing the cost of these services.
               

While the disposition of personal property may sound trivial, it is often the issue that holds up a final settlement of a case.  Work with your attorney from the outset of your case to get the issue out in the open and try your hardest to think with your head and not with your emotions.  If you follow these simple tips, dividing up the personal possessions acquired during your marriage should fall into place without the need for expense litigation.

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Legal Briefs On Divorce is a video podcast series providing viewers with a discussion on timely news and insight on current trends impacting divorce. This installment of Legal Briefs On Divorce is an interview with John S. Eory, Shareholder in Stark & Stark's Divorce Group, and Richard Carabelli, Jr., MAI of Martin Appraisal Associates, Inc. Mr. Eory and Mr. Carabelli discuss the importance of a real estate appraisal in the divorces process.

Legal Briefs On Divorce With John Eory & Richard Carabelli from Stark & Stark on Vimeo.

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