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Regrets, I’ve had a few…

The Appellate Division recently held that cell phone records indicating the location of calls when placed and the location called are not subject to being redacted.  The same decision also, AGAIN, held that records must be supplied at “actual cost” (this is same concept established by my Dugan v Camden Co. Clerk case over six years ago and reaffirmed in a numerous decisions) and the cost cannot be inflated by apportioning the cost of equipment to make the copies. Livecchia v. Mt. Arlington  The decision is another push in the direction of open government and public access to information.

So why the”regret” tagline?  This case makes me recall the first OPRA case I ever turned away.  Many times I regretted it.  Remember not asking out that crush because you could never get up the nerve?  Or buying that econobox because it was sensible, when you really wanted the convertible?  Same thing.  You see, soon after the Open Public Records Act was passed a cell phone carrier began marketing what it unabashedly called a “government plan”.  That plan involved the same number of minutes as a regular plan but cost MORE because it would supply a bill with no identifying information – no listing of the numbers on the account, who was called, where the calls came from or went to, time of calls, I mean nothing but a line item for the monthly charge and a list of the taxes and fees.  (Odd that a government would sign up for something it had no ability to police for abuse, but anyone reading this post likely has seen a town spend serious money to avoid disclosing information.) When the client came in after being given a handful of empty pages in response to her OPRA request, after much agonizing we turned her away.  I just did not feel the timing was right.  OPRA was so new, the courts were really all over the place on what are now basic points of OPRA law.  We had even just had Dugan dismissed sua sponte by a trial judge as meritless (now it is the gospel of setting “actual cost” for charges).  If a case that would attempt such a big leap came down wrong could really have destroyed all OPRA was intended to fix.  So while I never asked Wonder Woman (Linda Carter) to my 6th grade dance and my insurance rates would go through the roof if I started doing burn-outs in a Camaro now, I still hope that one day someone comes into my office with a “government plan” phone bill….

You Don’t Owe The Money Just Because They Say So…..

In a recent case the New Jersey Appellate Division dealt some very harsh cards to debt buyers when it comes to obtaining judgments against New Jersey residents.  The Appellate Division accepted the-not-so-crazy idea that proof is actually required to win a judgment.  Typically debt buyers purchase large quantities of bad debt – much of it old or very old.  Then the debt buyer sues everyone it can locate.  Operating on a volume basis, they play the odds that most people will not bother – or be able to afford – contesting the suit.  Once a “default” is entered, the practice has been to simply supply a certification asserting what was owed.  NOT ANY MORE!!  Now…the creditor must set forth the previous balance, identify all transactions and credits as well as the periodic interest rates charged, the balance upon which it is was applied, other accrued charges (like late fees) and the close of the billing cycle.  Most debt buyers will never be able to muster such proofs because typically bad debt packages pass through many hands and materials are lost, interest calculations are never shown and balances are presented as lump sums due.  Don’t cry for them – debt buyers know these risks when they purchase debts for 5 cents or less on the dollar.  “Junk” certifications – those devoid of any substance relating to how the alleged debt came to be what is claimed – like this one submitted by a different law firm (Pressler and Pressler) for a different client (New Century Financial Services, Inc.) in a different case will no longer carry the day.  The Court’s opinion in LVNV vs. Colvell is here .

New Jersey Judiciary Creates An “Environment of Access”

Great news!  Getting materials from the Court has just been made easier and less costly.  While the judicial branch of the government is not subject to the requirements of the Open Public Records Act (OPRA) , it has just made accessing records far easier than it used to be.  The high points include far lower costs (just 5 cents for normal-size copies and 7 cents for legal size), standardized request forms and clear guidance on just where the different types records can be obtained.  Kudos to the judiciary for leading by example.  The guidelines can be viewed here

Another OPRA Suit Filed Against Longport

As many may know, I represent a gentleman named Martin O’Boyle who is in a constant struggle to obtain records from the Borough of Longport.  They have tried to limit Open Public Records Act requests to just citizens of New Jersey (he is only a part-time resident) AND LOST.  They have given him 700 pages of materials completely blanked out under “claims” of attorney-client privilege AND LOST.  They have spent well over $100,000 in legal fees (having to pay my bills and the their own attorneys) because they LOST.  The latest involves an issue that has been in the local papers lately.  The Longport Commissioners were taking payments in lieu of medical benefits, even though their positions are part-time.  When The Press of Atlantic City found out about it and wrote a series of articles and editorials, they agreed to pay the money back.  My client made a request for the public records relating to determine what each owed, so he could then follow up and see what, if anything, was paid back as promised.  Longport promised to give him the records by June 8th.  They did not.  Tired of waiting, on July 5 we filed suit.  This is the most basic of OPRA issues – turning over the records at the date they set for themselves – yet Longport still could not (or would not) do so.  The lawsuit is here: O’Boyle v Longport  The Honorable Valerie H. Armstrong, AJSC, has given Longport until July 18th to figure out how they are going to respond.

Bank Levies Do Not Attach To Deposits Made After The Levy Was Served

Today New Jersey’s appeals court ruled in the case of T & C Leasing v. Wachovia that a bank account levy seizes only the funds in the account on the day it is served.  This issue has come up many times, usually where a levy is served on a Thursday and a bank will freeze the direct deposit payment that comes in Friday morning before the debtor even learns the levy took place the previous day.  This case arises from an unusual posture – the creditor actually sued the bank because it did not keep seizing money every time a check was deposited in the debtor’s account.  Typically a bank will seize any subsequent deposits made, so that Wachovia did not do so in this case was unusual as well.  This case demonstrates why it is crucial that you assess exactly what has transpired when you learn your account has been levied in a debt collection matter.  If you would like to discuss how the  T & C Leasing opinion may affect your circumstances, please contact us for a no cost consultation.

Contractors Cannot Hide Behind Corporate Shells To Evade The Consumer Fraud Act

The New Jersey Supreme Court has determined that principals of companies that act in violation of home improvement regulations can be held liable for Consumer Fraud violations.  Allen v VandA Bros Opinion Often times homeowners contract not with “Joe Contractor” but “Joe Contractor, LLC” when undertaking construction on their homes.  Most people thinking nothing of it – until something goes wrong, litigation ensues  and “Joe Contractor, LLC” has no assets or money to fix their home.  This opinion holds that the person(s) who establish policies in violation of the law are liable, whether they are the owners or even just the individual employees.  This is the same logic Burlington County Superior Court Judge Suter used when she awarded my clients a partial judgment against Basement Services 911 back in May.order and opinion The rest of that case goes to trial in August.

Pressler and Pressler SANCTIONED!!

On July 6, 2011 United States Magistrate Judge Patty Shwartz issued an Order imposing sanctions on the Pressler and Pressler law firm for failure to comply with discovery in my case, Krrywda v. Pressler and Pressler. You can read the Order here:Order For Sanctions

That case asserts that Pressler sends the Sheriff out to inventory people’s homes without complying with the various state execution laws mandating them to engage in asset discovery and identify specific property to the Sheriff BEFORE an inventory can be conducted.  The end result is that the Sheriff is intimidating New Jersey citizens – and conducting illegal searches – for the benefit of Pressler’s clients.  Even worse (if that is possible), this is being done at taxpayer expense.  My client had no assets, told them so in a certified response the information subpoena and they still sent the Sheriff out to “visit” her.  The suit claims violating state levy and execution laws is a violation of the Fair Debt Collection Practices Act.  You can follow the case on my Fair Debt page.

Engaged To Write “The Book” On Open Government

I am pleased to announce that I have gone under contract to write an upcoming book for Gann Publishing on the topic of Open Government.  The Gann Law Books series are the leading treatises on many areas of New Jersey law.   If you have ever been in Court and seen a judge flip through a book on the bench looking for a point of law, odds are it was one of the Gann books.  Gann’s books addressing the Court Rules, Land Use, Title 59, Evidence, Legal Ethics and other subjects are the “gold standard” of the legal research and are crucial to appreciating the nuances of the law.  I am honored to be a part of its stable of authors – which include highly respected practitioners, noted judges and even a former Supreme Court Justice.

The book will cover topics relating to New Jersey Open Government – The Open Public Records Act (OPRA) and The Open Public Meetings Act (OPMA).  Please check back for updates on the progress.

Gann Law’s entire product line is located here:  http://www.gannlaw.com/

Homeowners Acting As Their Own General Contractor Are Protected

One of the issues that seems to arise repeatedly is whether homeowners who pull the permits for the work on their house – effectively acting as a general contractor – are still protected by the New Jersey Consumer Fraud Act.  Most courts have said the protections still apply, but now the Appellate Division has issued guidance to trial courts statewide that definitively settles the issue.  Homeowners still have the protection of the law when acting as their own general contractor and hiring subcontractors to work.  Murnane v Finch Landscaping

Honored By The New Jersey Law Journal

The New Jersey Law Journal has named Donald Doherty as one of the nine attorneys selected as  “Lawyers of the Year”.   The recognition was as a result of his work on Open Public Records Act matters.

I am grateful my clients place their trust in me to pursue these matters. I am honored to be recognized.   A copy of the article can be read here: Cover Page,Page 2,Page 3

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