In this particular case, Giambanco (the “Debtor”) owed money on her credit card to creditor Midland Funding LLC. Midland Funding filed a complaint against the Debtor. The Debtor and Midland Funding reached a settlement, which was memorialized in the form of a consent judgment. When the consent judgment was signed by the parties and forwarded to the trial judge for his signature, the trial judge removed that portion of the consent judgment which stated that if Debtor defaults on the terms of the consent judgment, that Midland Funding can immediately seek wage execution without further notice to the Debtor.

Midland Funding filed a motion to vacate the order, which was altered by the trial judge, and sought for its original provision permitting the wage execution without notice to be included in the consent judgment. The trial judge denied Midland Funding’s motion, holding that the Debtor may be prejudiced by not being notified of wage execution, and that such waiver was against public policy.

The Appellate Division agreed that the proposed form of language in the consent judgment did not clearly set forth that the Debtor was waiving her notice, and that such waiver was “knowing and informed” so as to comply with R. 4:59-1 and N.J.S.A. 2A:17-50(a). The Appellate Division stated, however, that if a trial court finds that a proposed consent judgment does not comply with statute or court rules, the trial court must reject the consent judgment, or return the case to its prior status. This case is important, particularly for attorneys, when drafting proposed forms of consent judgments. 

Other states with high rates of mortgage defaults were Florida and Nevada.  The Survey found that Florida had the highest mortgage delinquency rate with 18.68%, and Nevada had the second highest rate with 14.3%.  States with the lowest mortgage delinquency rate were North Dakota with 1.6% and Alaska at 2.24%.  There will likely be a surge in foreclosure filings now that Courts have allowed major mortgage servicers to resume their foreclosure filings.
 

On December 20, 2010, Judge Jacobson, a judge in Mercer County, New Jersey, issued an Order for mortgage servicers to show cause as to why foreclosures should not be halted. Since the December 20, 2010 Order was entered many Court rules relating to foreclosures were changed, which in effect, put pending uncontested foreclosure actions on hold.

Some of the changed included new certifications attesting to the fact that legal counsel for the mortgage companies communicated with the mortgage companies to ensure the authenticity of their documents. The rules also require that any papers filed by an attorney must attach evidentiary support.

Another Order was entered by Judge Jacobson on March 29, 2011, requiring the mortgage companies to address their record-keeping practices, to implement procedures for making sure that any Court-filed documents are accurate, and to implement a process for interacting with attorneys. The March 2011 Order also provides for the mortgage companies to be monitored by having random files reviewed one year after the uncontested foreclosures restart.

Last week, five of the six largest mortgage servicers received approval to continue with their uncontested foreclosure actions. The five mortgage servicers are Bank of America, CitiBank, JP Mortgage, Chase Bank and Wells Fargo. These mortgage servicers were found to have implemented better practices. Ally Financial, formerly GMAC Mortgage, is the only mortgage servicers whose uncontested foreclosure actions remain on hold for the time being. Associations will now begin to see the mortgage companies completing their existing foreclosure actions.

If you have questions regarding how these Orders may affect you, please feel free to contact me here in my firm's Lawrenceville, New Jersey office.

On June 22, 2010, the Appellate Division affirmed the trial court's order, finding that the trial judge properly applied the doctrine of res judicata to bar relitigation of the validity of a sublease fee imposed by a co-operative, which was determined valid and enforceable in a prior litigation.

 

The plaintiff is a nonprofit corporation responsible for the administration, maintenance and operation of a community of residential cooperative units (the “Corporation”). The defendant is a shareholder of the corporation, holding a proprietary lease to a residential unit.

 

The Corporation’s Board adopted a resolution that imposed a monthly sublease fee on all unit owners who rented their units (the “Sublease Fee”). The defendant refused to pay the Sublease Fee on the grounds that he felt it was unfair and discriminatory. The plaintiff filed a complaint against defendant for unpaid Sublease Fees, late fees and attorneys’ fees and costs incurred in the collection of the Sublease Fee.

 

Following a bench trial, the trial court found the Sublease Fee fair and properly adopted and entered judgment against the defendant. Rather than appeal the judgment, the defendant satisfied the judgment and then refused to pay any further Sublease Fees. The plaintiff filed a second complaint against the defendant for unpaid Sublease Fees, late fees and attorneys’ fees and costs incurred in the collection of the Sublease Fee. The defendant filed an Answer and Counterclaim again challenging the Sublease Fee as being unfair and discriminatory. The Court granted the plaintiff’s motion to dismiss the defendant’s pleadings on grounds of res judicata, and subsequently granted the plaintiff summary judgment for unpaid Sublease Fees, late fees and attorneys’ fees and costs.  

The defendant appealed the order granting summary judgment to the plaintiff. On June 22, 2010, the appellate panel affirmed the order, finding that the trial judge properly applied the doctrine of res judicata to bar relitigation of issues determined in the prior litigation.

P- Privacy: any matter that, if disclosed, would constitute an unwarranted invasion of individual privacy;

L-Litigation and Contract Negotiations: any pending or anticipated litigation, or contract negotiation;

A-C- Attorney Client Privilege: any topic that falls under an attorney client privilege, to the extent that confidentiality is required in order for an attorney to exercise his duties as a lawyer to the Association;

E-Employment: Any matter involving the employment, discipline, dismissal or promotion of an officer or employee of the Association.
 

The PLACE for discussion of any of the above topics is a meeting where attendance is restricted to Board members. 5:20(1.1).

1. R.1:34-6: Office of Foreclosure: This Rule was amended to increase the scope of Orders that the Office of Foreclosure may enter in uncontested foreclosure actions. While contested foreclosures are referred to the Court, administrative tasks related to uncontested foreclosure actions can be addressed by the Office of Foreclosure.
2. R.4:4-5(c): Service by Publication: This Rule was amended in order to provide the absent Defendant with additional information in the Notice of Publication. The Notice of Publication, in addition to being in the form of a Summons without a caption, providing the municipality and street address of the property subject of the foreclosure action, and setting forth the object of the action, the name of the parties, and the basis for joining such parties, the Rule now requires the following additional information: the docket number of the action, the Court, the County of venue, detailed information about the mortgage, tax sale certificate, or condominium or homeowners association liens, including the parties to the instrument, the recording date, and the book and page of the recorded instrument; the Rule further requires that the Notice of Publication also sets forth information regarding the availability of legal services and lawyer referral services along with telephone numbers.
3. R.4:5-1(b): Case Information Statements: This Rule was amended to require that a Case Information Statement be attached as a cover sheet to Foreclosure Complaints. The form of Case Information Statement is as set forth in Appendix XII-B(2).
4. R.4:64-2(b): Affidavit of Amount Due: This is a new paragraph added to R.4:64-2, which specifies the contents of the Affidavit of Amount Due, and provides reference to the form of Affidavit (Appendix XII-J). The new Rule mandates that the Affidavit be in the form as set forth in Appendix XII-J of the Court Rules, which includes a schedule stating the principal due at the time of default. At the bottom of the schedule a notice must be included, which states that there may be surplus money, and must set forth the procedure for claiming such surplus money.
5. R.4:64-2(c): This is another new paragraph added to R.4:64-2, which sets forth the time limitations for filing the Affidavit of Amount Due. Specifically, the amended Rule requires that the Affidavit of Amount Due be signed and sworn to not more than sixty (60) days prior to filing same with the Office of Foreclosure or Court. The Affidavit must be sworn to by the Plaintiff with personal knowledge, and if not by the Plaintiff, then the Affidavit shall also provide that the affiant is authorized to make the Affidavit.
6. R.4:64-3: Procedure for Withdrawing Surplus Money: This Rule was substantially amended and distinguishes between Motions for Surplus Funds filed by parties named in the Complaint, and from those parties who were not named in the Complaint. In the past, all applications for surplus monies were made directly to the Court. The amended Rule provides that those parties originally named in the Complaint, are to now file their Motions for Surplus Funds with the Office of Foreclosure. If such Motion is unopposed, the Office of Foreclosure can recommend a specific Order to the Court; if the Motion is opposed, then the matter is referred to the Court for disposition. Conversely, Motions for Surplus Funds filed by parties who were not named in the Complaint, must be filed directly with the Court, regardless of whether it is a contested or uncontested Motion.
7. R.4:64-9: Motions in Uncontested Matters: This is a new Rule which requires the foreclosing Plaintiff to place the Defendant on notice as to the procedure to follow if he or she wants to oppose a Motion. Specifically, the Rule requires that the Plaintiff notify the Defendant that the Office of Foreclosure does not conduct hearings for uncontested matters, and that all opposed Motions will be referred to a Court. The Notice of Motion filed with the Office of Foreclosure shall state the address of the Office of Foreclosure, that objections to the Motion must be made within ten (10) days after the date of service, that the Office of Foreclosure does not conduct hearings, that a personal appearance will not qualify as an objection, and that if an objection is filed, the case will be sent to a Judge for resolution.
8. R.4:65-2: Notice of Sale: This Rule was amended to require that the Notice of Sale include an advisory that there may be surplus funds to which the Defendant is entitled, and must set forth the procedure for claiming it.

For easy reference, a catalogue of the 2008 amendments affecting foreclosure actions is set forth in comment 4 in R.4:64-1.

Technorati Tags: New Jersey : Podcast :  Community Associations  

This week's New Jersey Legal Update is presented by Melissa Volet a member of the Firm's Community Associations group.

You can download the New Jersey Legal Update Podcast # 41 here. (7 MB)

Technorati Tags: New Jersey : Podcast : Community Associations