If you do not want your money to be levied upon, it must be in a bank that does not do business in New Jersey

Often I am contacted by people subject to who had their bank account levied upon in New Jersey even though they do not live here or or do their banking here.  Most people have never considered that their accounts may be subject to levy at a bank branch different from where they bank.  It is a very common occurrence.  Recently, the Appellate Division upheld a concept that most lawyers always understood, but many non-lawyers did not: in order for a creditor or debt collector to get their hands on your money, all they have to do is identify one place in New Jersey where the bank operates – not the specific branch where you bank.  Nor does it matter if bank’s headquarters or account processing division is located in another state.  A New Jersey levy, served on a banking location in New Jersey, will be a valid levy even if the debtor is not in New Jersey. Triffin v Community Preschool  That is why if people are trying to negotiate with their creditors it is often to their advantage to bank through a small bank located outside New Jersey – like in Delaware and Pennsylvania – that does not do business in New Jersey.  Banking with a large bank like Bank of America means your money can be attached nearly anywhere in the country.  The more difficult it is to get your assets, the better the negotiating position you may have.  Of course, moving your money after judgement or with the intent to defraud someone may be a fraudulent transfer.

The Dangers of “Saying Anything Just to Win”….

The case arises from a tax appeal in Cumberland County.   The homeowners sought to lower their property taxes by establishing the true value of the home.  They were granted a modest reduction at the County Board hearing, as is typical.  Upon further appeal to the Tax Court, the stakes were obviously higher for both – the homeowner could have their assessment raised and the township could could see it lowered even further.   The town lost – big – because its expert changed his testimony to try and skew the facts.  The township took differing positions at the tax board and in Court.  The homeowner – without any background in real estate valuation at all – convinced the Court a shell game that was being played with the facts. Kula v Tp. of Downe

If you feel your real estate is over valued by the tax collector, please call for a free consultation.  Or at least do your homework as thoroughly as the Kulas did.

Arena Contracts Are Subject To Disclosure Under OPRA

Did you ever wonder how, after spending hundreds of millions in taxpayer dollars and promising that the new stadiums and arena venues will bring in jobs and revenue, these same facilities require constant subsidies?  Now it is possible to find out.  The Appellate Division has held that contracts for government owned/operated arenas are subject to disclosure.  Newark Morning Ledger v NJ Sports & Expo Authority

While the case is important for the substance of what is required to be disclosed – the revenue and costs associated with operating what is often a bottomless pit of taxpayer subsidies – the biggest point is that here again the court rejected conclusory certifications offered by the government.  Many times when an OPRA request is made, it is denied on the basis that the records are exempt.  When pursued further, most of the time all that is submitted is a generalized statement that some unspecific harm will come from the disclosure.  This case AGAIN specifies that the government was bring forth SPECIFIC ARGUMENTS about how SPECIFIC FACTS contained in the documents are expected to bring about a SPECIFIC HARM so severe that it should trump the public’s right to access and ability to learn what our government is doing and how it is spending our money.  If your Open Public Records Act request is denied for a reason that you do not understand, it is probably a reason that needs to be more specific.

Foreclosure “Workouts” are subject to the Consumer Fraud Act

Many people have contacted me about foreclosure “workouts”.  These workouts have been proposed by lenders or, more often, third parties looking to taking over their property with an agreement to sell it back to them.  The New Jersey courts have repeatedly found many of the “foreclosure rescue” schemes to violate the Consumer Fraud Act – and rightfully so.  The terms are often unconscionable, the interest rates outrageous and  the real chance of getting the property back to be non-existent.  However, the Supreme Court has now also allowed workout agreements with lenders and mortgage servicers to be actionable.  Many courts had not allowed the Consumer Fraud Act to apply because the agreements with banks were construed as “settlements”.  The Supreme Court has recognized that the Consumer Fraud Act should apply so as to discourage banks from collecting excessive attorneys fees, costs, late fees and interest.  The Court was troubled by the banks collecting sums greater than allowed by Orders and Court Rules and forced-place insurance being charged on properties that are already insured.  Gonzalez v Wilshire Credit Corp  Notably, there may also be Fair Debt Collection Practices claims for such actions.

Big Week For Public Records Access Decisions

In the past week, there have been two new published decisions regarding the public records access.  Both are good news for record requesters.  First, the Appellate Division determined that discovery materials not filed with a court can still be accessed under the common law right of access.  The common law allows for a broader range of materials to be accessed than OPRA IF the requester can demonstrate a need or particular interest relevant to the material sought.  A law firm sought access to expert reports made for the State in other cases and the Appellate Division sent the case back to the trial court for determinations under the common law right of access to be made.  Drinker v NJ Dept of Law

Also, the New Jersey Supreme Court determined that the League of Municipalities – an entity that, among other things, lobbies for the interests of municipal government – is a “public entity” for purposes of OPRA and must release records under that law.   This is very important because now municipal officials cannot circumvent troublesome issues or seek out new laws that raise taxes by acting through the anonymity provided by League. Fair Share Housing v League of Municipalities

This decision will also aid in the case I filed, Scoblink-O’Neill v. Delaware Valley Regional Planning CommissionScoblink-O’Neill v DVRPC Complaint  That case seeks to determine that an agency created by New Jersey statute, funded in large part by New Jersey tax dollars and comprised of several New Jersey officials must comply with OPRA even though it operates in both NJ and PA.  In that case, my client requested records about a grant for Haddon Heights, NJ.  When she sought to challenge the material that was given to her as non-responsve and incomplete, she was directed to Pennsylvania records access appeal procedures which are far less favorable than OPRA.  (See also, the post below “OPRA vs FOIA is like Godzilla vs a Girl Scout Troop)

Educational Funding Company Sued For Continuing To Bill After Jiu Jitsu Contract Is Completed

Today, one of my clients sued the Educational Funding Company for a situation that occurs all too regularly.  She allowed her credit card to be billed$149 per month for a year’s worth of jiu jitsu classes her son was taking.  At the end of the year, they did not stop billing her.  Worse, it increased the charges.  When she disputed the charge with the credit card company, EFC responded that she agreed to the sum and was trying to get out of payment because she stopped taking lessons!!  Instead of reading the contract – even after she disputed the charges – EFC aggressively pursued the money to which it was not entitled.  We sued under the Fair Debt Collection Practices Act and Consumer Fraud.  Here is the Contract, the Letter challenging the dispute  EFC sent to her credit card company after she made the dispute and the Lawsuit.  LESSON:  NEVER, EVER AGREE TO RECURRING PAYMENTS.  IF YOU CAN”T GET THEM TO STOP WITHOUT SUING, YOU MAY DESTROY YOUR CREDIT BEFORE YOU CAN CORRECT THE PROBLEM.

Failure To Properly Identify The Lender Requires That A Foreclosure Action Be Dismissed

The Appellate Division has recently clarified a disputed area of law – and added protections for homeowners facing foreclosure.  The New Jersey Fair Foreclosure Act requires that prior to filing a foreclosure case, the homeowner must be sent a notice outlining, among other things, the amount due to bring the mortgage current and identity who holds the mortgage.  While seemingly trivial, this is very important – I have been consulted twice by people facing foreclosure who were trying to work out deals with companies that no longer owned their mortgage.  People often pay a “mortgage servicer” that processes there payments and sends to a central clearinghouse but the bank that actually owns the debt may have changed, and often is unknown to the homeowner.  In the last financing boom mortgages were bundled and investors (banks) were sold “shares” in mortgage packages just like stocks.  And just like Ford does not know the identity of every stockholder that owns a piece of the company, banks traded in and out of mortgage portfolios so often they are not always completely sure of what loans they own.  To make sure a homeowner has been given every opportunity to straighten out a delinquency,  the Appellate Division has required lower (trial) courts to dismiss cases where the mortgage holder was not identified to the homeowner prior to the foreclosure action being filed. Bank of NY vs Laks

Not only will the foreclosure complaint be dismissed, but it is likely that the homeowner will have a Fair Debt Collection Practices Act claim against the servicer or lawyer that sent the improper notice to help them pay the delinquency.  The federal courts located in the New Jersey District have been very consistent in holding a violation of state foreclosure law is a violation of the FDCPA.  One of the first cases was the decision I obtained in Barrows vs Chase, which held lawyers may be liable under Fair Debt for trying to collect sums beyond what is allowed by the Court Rules.

OPRA vs. FOIA is like Godzilla vs. a Girl Scout Troop

When looking to obtain records, many people assume that all records access laws are the same.  NOT TRUE!  The laws vary state-to-state and many people that have consulted me from outside New Jersey are shocked to learn how expansive New Jersey’s Open Public Records Act is interpreted.  Even just across the river in Pennsylvania, there are over 100 exceptions to disclosure.

Recently a case new came out that demonstrates just how effective OPRA is as method to access records when compared to the federal Freedom of Information Act (FOIA).  With OPRA, once a record comes into the hands of a government official, it is a “government record” subject to disclosure.  As Judicial Watch v. FHFA  demonstrates, a record in possession and control of the federal government is not a “government record” under FOIA (and thus is not subject to disclosure) if no one has read it. (Begging the question of why are we creating records no one reads, but that is beyond the scope here.)  Thankfully the New Jersey legislature did not impart such a complicated test to determine what records are subject to release.  Under OPRA, if the government has a record, it is subject to disclosure unless it falls into the few exceptions provided in the law.   All that needs to be demonstrated is the government “possesses” the record.  In contrast, under FOIA a record is not subject to disclosure unless (1) the record was “intended” to be a public record (2) it has “control” over the record to dispose of or use at it sees fit and (3) it was relied upon to set policy or assist in a decision.

Another Pressler and Pressler Case Filed

This office has filed another case against Pressler and Pressler, along with their client Midland Funding LLC.  The case alleges the Pressler firm uses a collection letter that is confusing, misleading and deceptive.  The letter is written in an aggressive tone, demanding payment immediately payment and threatening “further action against you”.  However, it goes on to then claim that “no attorney has personally reviewed the particular circumstances of your account”.  What??  Aren’t lawyers supposed to know what they are writing about, you ask?  You are correct.  A federal judge said so  last summer in a case named Lesher v. Law Office of Mitchell Kay and held that lawyers sending letters about matters they claim to know nothing about was deceptive and misleading in violation of the Fair Debt Collection Practices Act.  Did that stop Pressler?  No.  Then the Third Circuit upheld the Lesher case on appeal.  Here is the Pressler Letter, the Lesher decision and my client’s Lawsuit Against Pressler.

Longport Produces the Pension Records

A few posts below you can see where I filed another case against Longport for its failure to comply with the Open Public Records Act (OPRA), this time for failing to turn over records relating to how the pensions are funded.  My client has now been given 123 pages of what are claimed to be responsive documents.

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