New Jersey Lawyers Blog

There are many things mature persons need to plan for. An often overlooked area which requires careful planning is potential long-term care. More than half of people sixty five and over will require some form of long-term care. The Medicare office estimates that by the year 2020 approximately twelve million people will need long-term care. The cost of health care continues to increase and government support programs are being cut. The median cost of a one year stay in a nursing home in New Jersey is approximately one hundred thousand dollars per year.

The five possible sources for payment for long term care are private payment, long term care insurance, Medicaid, Medicare and the Veterans Administration. If you are a veteran entitled to those VA benefits, if you are eligible for long term care insurance and able to afford it , or if you are able and willing to pay privately for long-term care, then perhaps you do not need to plan. However, most people do not fit into any of those three categories. The two remaining options are Medicare and Medicaid.

Medicare has specific rules and will only provide coverage up to one hundred days. The patient must be eligible for Medicare, have spent three days in a hospital and enter long term care within thirty days of the hospital stay. Medicare will cover the first twenty days of the stay, then for the next eighty days Medicare may require the patient to pay up to $144.50 per day and Medicare will cover the balance. After the first one hundred days, Medicare will stop providing coverage. Moreover, the care must qualify as "medically necessary". Medicare will not pay for what is classified as "custodial care," that is it will not pay the cost of general assistance with daily activities, i.e. eating, dressing, bathing, etc. The patient must require skilled nursing care. Thus, this is a very limited payment option.

Continue reading "Elder Care Planning" »

Every owner of a closely held small business should have an up to date buy-sell agreement.

A buy-sell agreement is a written agreement between business owners. The purpose of the agreement is to ensure that the current owners are protected from ending up owning a business with an unwanted partner (or shareholder). It restricts the owners' rights to sell or transfer their interest in the business to a third party. The agreement dictates what will happen in the event of the death of an owner, the disability of an owner, the retirement of an owner, the withdrawal of an owner, the bankruptcy of an owner, the divorce of an owner, or one owner's desire to sell her share of the business.

A buy-sell agreement is the most effective mechanism to ensure for: the smooth transfer of ownership of the business in the event of death, divorce, bankruptcy or retirement of one of its owners; or an agreed upon method for valuation of the business; payment terms and method of funding the payment for the business interest of one of the owners for the buyout of a departing owner; eliminating or minimizing disputes between owners who are retaining ownership and those leaving the business, or between owners and heirs of a deceased owner or other possible unwanted business partners; ensuring that the remaining owners retain control over who their future partners may be; and ensuring that upon the death or disability of an owner, their family is financially secure.

It is crucial that each year after a buy-sell agreement has been finalized and signed that the owners review certain key provisions of the agreement to ensure they still reflect their wishes and changed circumstances:

1. The valuation formula - the owners should ensure that it continues to reflect the value of the business and their own intent;


2. The effect of any changes in tax laws upon the terms of the agreement;


3. The funding mechanisms of the agreement - regardless of the funding scheme contemplated, be it through insurance maintained by the business on the lives of the owners, or through payments over time from the earnings of the business, it is crucial to review and ensure that the funding will be available to effectuate the terms of the agreement;


4. The structure of the agreement - a redemption agreement, a cross purchase or a hybrid; and


5. The triggering event - while buy-sell agreements typically include various potential scenarios including death, divorce, disability, voluntary termination, involuntary termination or bankruptcy of an owner, it is important to consider the specific circumstances of the owners of the closely held business and ensure that each triggering event is addressed in a way that is satisfactory to all owner's actual needs.

Everyone should do their best to avoid accidents that lead to injuries such as car, bus, motorcycle, or trucking accidents, a slip and fall accident, or a work related accident - but some accidents cannot be avoided. Once you get into an accident it can be hard to think clearly. You may be injured, stressed, confused, or overwhelmed. It is therefore important to keep a level head and follow the guide below to best ensure that your rights are protected.

Step 1: Report the accident to the appropriate authorities. Typically accidents are reported to the local police department. However, if you are on a state highway in New Jersey, the accident should be reported to the New Jersey State Police. Boating accidents must be reported to the New Jersey State Police, Marine Law Enforcement station in the area where the accident occurred. Work place injuries should be reported to management.

Do not discuss motor vehicle or boating accidents with others involved, this includes the other drivers' insurance company. Direct any questions to your lawyer. Avoid posting comments on social media websites such as Facebook, Twitter, or Instagram, etc.

Discuss the accident only with the police during the investigations. All other discussions should be limited.

Continue reading "Accident Check List - Steps You Should Take Following a New Jersey Accident" »

The concept of a charitable immunity - that charities cannot be sued for negligent conduct - originates from nineteenth century common law, based upon the idea that funds that were otherwise meant to go to charitable causes should not be diverted to pay for legal actions. In 1958, the New Jersey Supreme Court overruled this charitable immunity doctrine. However, shortly thereafter, the New Jersey legislature enacted The Charitable Immunity Act reinstating the charitable immunity to a certain extent.

The Charitable Immunity Act provides in part that nonprofit corporations, societies and associations organized exclusively for religious, charitable or education purposes or their representatives cannot be liable to anyone who suffers as a result of a charitable organization's representatives' negligence if they would otherwise benefit from the acts of the organization. Therefore, in order to qualify for the charitable immunity, and therefore avoid suit, the organization must have been promoting its exclusively religious, charitable, or educational purpose to the plaintiff who was a beneficiary of it's religious, charitable or education efforts.

The idea is that the person who the charitable organization was trying to help cannot then sue the charitable organization for negligence in it's efforts to aid that person. However, a Charitable Immunity does not insulate an organization from suit if the wrongful act was willful, intentional, reckless, or even grossly negligent.

Continue reading "Charitable Immunities: Immunity from Civil Lawsuits" »

New Jersey imposes a "realty transfer fee" on the sale of property. Sellers of real estate in New Jersey are often surprised by this fee, which is akin to a sales tax. The amount of realty transfer fee changes with the sales price, it is about half a percent for houses selling for $225,000, and increases to about one percent for sales of $1,000,000, as the sales prices go higher, the realty transfer fee continues to increase. You can check the realty transfer fee for a particular sales price using an online calculator.
http://www.realstorynj.com/sellers/realty-transfer-fee-calculator The realty transfer fee, along with the mansion tax, must be paid to the county clerk of the county where the property is located simultaneously with the recording of the deed.

If a home is sold for more than one million dollars it is also subject to the mansion tax in addition to the realty transfer fee. The mansion tax requires the buyer to pay a tax of one percent of the purchase price. Properties which are subject to the mansion tax include residential property, farm property with a house and commercial property. Properties which are not subject to the mansion tax include vacant land, farm property with no residence, farm property which qualifies for farmland assessments, industrial property and apartment buildings with five or more units, cemeteries, public schools, churches and certain properties owned by charitable organizations.

Certain transfers of property are exempt from paying the realty transfer fee and the mansion tax. Exempt transfers include, among others:

- Properties sold for less than $100 where there is no outstanding mortgage on the property;
- Properties transferred from or to the United States of America or the state of New Jersey;
- Properties transferred to provide security or as a release of security for a debt;
- Deeds which are recorded to confirm or correct a prior deed;
- Deeds which can be recorded as "ancient deeds";
- Properties transferred between husband and wife;
- Properties transferred between parent and child;
- Properties transferred according the terms of a will;
- Properties transferred within ninety days of the entry of a divorce decree which dissolves the marriage between the grantor and grantee

There are also partial exemptions from the realty transfer fee for individuals over the age of 62 years, for legally blind persons and for disabled persons, provided the sellers own and occupy the property at the time of the sale, are residents of New Jersey, are all joint owners qualify for the partial exemption, and the property is a one or two family residence. To qualify for an exemption or a partial exemption An Affidavit of Consideration for Use by the Seller must be prepared and recorded with the Deed. http://www.state.nj.us/treasury/taxation/pdf/other_forms/lpt/rtfexempt.pdf

If you need assistance buying or selling real property, call our attorneys at (973) 890-0004 or e-mail us.

There are three forms of formal dispute resolution to resolve a legal dispute which informal negotiations have fulfilled: mediation, arbitration, or litigation. Understanding the benefits and drawbacks of each is important to decide which method is best to resolve a dispute.

Mediation.

Mediation is a process where a neutral third party assists in resolving the dispute. Mediators are typically lawyers or retired judges who have extensive experience in the field in which parties have a dispute. The decision to settle is always up to the parties. Mediators do not have the power to issue a binding decision. Instead, mediators can often provide their opinion on how they believe matters will be resolved through a litigation or an arbitration and lead the parties to agree by explaining the strengths and weaknesses of each others' case.

Mediators will often ask the parties to submit confidential written statements and documents that support the parties position to the mediator before the mediation. On the day of the mediation, the parties will meet at a pre-arranged location with the mediator. The process typically involves the parties providing a short explanation of their side of the case to the mediator. The parties will then break into separate rooms and the mediator will shuttle between rooms to discuss the dispute and a resolution.

Mediation is typically confidential. Mediations resolve disputes quickly and are far less expensive than arbitration or litigation, and allow the parties to control the outcome.

Continue reading "Mediation, Arbitration, Litigation: What is Best?" »

New Jersey law N.J.S.A. 54:4-35.1 allows property owners to request reduced property tax assessments for property damaged as a result of Superstorm Sandy. This law was enacted in the response to a severe Nor'easter which hit New Jersey 1962. That storm caused significant property damage and there was no basis in the law for property tax relief for the affected tax payers. This year, that law is being used to assist property owners who have sustained significant property damage. The statute provides in part:

...When any building or other structure which has been destroyed, consumed by fire, demolished or altered in such a way that its value has materially depreciated, either intentionally or by the action of storm, fire, cyclone, tornado, or earthquake, or other casualty, ...the assessor shall...after examination and inquiry, determine the value of such parcel real property as of...January 1, and assess the same according to such value.

Usually, when a homeowner files a property tax appeal, the appeal is based on the fair market value of the property on October 1st of the preceding year. Superstorm Sandy hit the coast of New Jersey on October 29, 2012, devastating communities and causing property damage in the United States which has been estimated to exceed $71 billion.

This law is very limited in that it only assists homeowners who have sustained damage between October 1st of the previous year and January 1st of the current tax year. It also requires notification of the assessor by the property owner before January 10 of the current tax year. If a homeowner notified the assessor and filed the appropriate form with supporting documentation prior to the January 10th deadline, the municipality will investigate and issue an assessment.

Continue reading "Property Tax Appeals for Homes Damaged by Superstorm Sandy" »

New Jersey's Conscientious Employee Protection Act ("CEPA") is one of New Jersey's employment protection laws. The Act, enacted in 1986, is often referred to as the "whistleblower law." In fact, it is one of the most liberally interpreted and expansive whistleblower laws in the country. It protects employees from being fired in retaliation for the employee's disclosure of or objection to a wrongful practice of the business or one of the business's employees.

In order for the statute's protections to apply, the employee must disclose, object to, or refuse to participate in an act, policy, or practice of the employer which the employee reasonably believes violates a law, regulation, or public policy. Further, the employee must be fired, harassed, or otherwise retaliated against as a direct result of the disclosure, objection, or refusal. The employee does not even have to be right about her belief that the conduct is illegal or against public policy to be protected by the act. The employee merely has to have a reasonable belief of such.

CEPA includes in its definition of "employer" any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent.

Continue reading "Individual Liability for Violations of the Conscientious Employee Protection Act" »

New Jersey has several "tracks" for a government employee who is in civil service to fight when he believes he was wrongfully fired. The first, is in the Civil Service Commission, which can order reinstatement and back-pay. However, this process goes through the Office of Administrative Law and does not provide for a jury trial. The other way is to challenge the firing in the Superior Court, with the constitutional right to have a jury decide the employee's case. Some statutes, such as the New Jersey Law Against Discrimination and the Conscientious Employee Protection Acts, provide for the award of punitive damages and attorneys fees.

The Conscientious Employee Protection Act ("CEPA") is New Jersey's whistleblower law. It protects whistleblowing employees. Employers may not retaliate in any way, whether through firing, harassment, demotion, or in any other manner because the employee has disclosed, objected to, refused to participate in or threatened to disclose a violation of law or public policy regarding public safety, or fraudulent acts. N.J.S.A. 34:19-1.

The New Jersey law had been that an employee could challenge his termination in the Civil Service Commission on the fact that the employer did not have a basis to discharge him, but not be foreclosed from also filing a whistleblower lawsuit under CEPA in Superior Court if she did not raise the retaliatory action before the Civil Service Commission.

The New Jersey Supreme Court, generally is one of the most protective courts of
employees rights in the country, was recently issued an opinion by his employer which should give civil servants concern.

Continue reading "An Employee Should Choose His Court Well or He Might be Shut Out From Any At All" »

People or businesses seeking to collect money in New Jersey can file a suit in the Superior Court to obtain a judgment. An experienced New Jersey litigation attorney should be consulted before suing, however,because there are many factors that should be considered. For example, a decision needs to be made about which division of the court to file in and what county the suit can and should be filed in. In addition, the suing party must decide which parties should be named as defendants. Finally the suing party must also decide the type of relief sought and properly request it (i.e., compensatory, attorneys' fees, prejudgment interest, etc.)

A lawsuit is started with the filing of a complaint. A complaint is the legal document that sets forth the facts and legal reasons why the suing party should recover the requested relief. Complaints must correctly identify the parties being sued. The party filing suit, otherwise known as the plaintiff, is legally responsible to accurately and properly name the correct defendants. Failure to properly name a defendant can later preclude post-judgment collection efforts. Failure to include all responsible parties in one suit can later preclude collecting from parties that were not initially named.

After deciding which parties to name, the plaintiff should decide which county the suit should be brought in. New Jersey Court Rules require a complaint to be filed in the county where the cause of action arose or the county in which any party to the action resides. Corporations are considered to reside in any county in which the corporation either does business or its registered office is located. A plaintiff can hire private investigators to perform a search to identify the address where a potential defendant resides; a good lawyer can often do this also. A plaintiff can also search the New Jersey Department of the Treasury website to determine where a corporation is registered or does business. It is critical to file the complaint in the proper county. Failing to file to file the complaint in the proper county can lead to a dismissal of the lawsuit.

After picking the county in which suit will be filed, the moving party must decide which division of the court to file in. If a matter involves an amount in controversy of $15,000 or less than it may be brought in the Special Civil Division of the Superior Court. If the amount in controversy is greater than $15,000 then it must be brought in the Law Division because Special Civil Part monetary recovery is capped at $15,000, exclusive of court costs and attorneys fee (if allowed by law). There are advantages to filing suit in either the Law Division or the Special Civil Part.

Continue reading "Considerations Before Filing Collection Suit In New Jersey Filing" »

The Magnusson-Moss Warranty Act was enacted in 1975 to govern written warranties on consumer products. Oral warranties are not covered by the Act. Commercial warranties are not covered by this Act. Warranties on services are not covered by the Act. Instead, the Act was enacted to require the manufactures and sellers of consumer products to give consumers detailed information regarding warranty coverage, and to require sellers to live up to their warranties.

The Act does not require that a warranty be provided. However, if a warranty is provided it must be clearly written and easy to understand. The warranty must be designated as either "full" or "limited" and readily available for inspection.

Further, if a warranty is provided, the Act serves many useful purposes. First, it allows consumers to get complete information about warranty terms and conditions. The Act also enables consumers to compare warranty coverage before buying a consumer good. Additionally, the Act ensures warranty competition by allowing consumers to be able to pick a product, based on a combination of the price, features, and warranty. Finally, the Acts provides incentives for companies to perform on their warranty obligations in a timely and through manner and to resolve disputes without delay and expense to the consumer.

The Act protects consumers in many ways. First, the Act prohibits the disclaimer of implied warranties when a written warranty is offered. This means that consumers will always receive an implied warranty of merchantability regardless of how broad or narrow the written warranty is. An implied warranty can only be limited to the duration of the written warranty. For example, if a written warranty is limited to one year, then the implied warranty can be also limited to a year.

Continue reading "Consumer Protection - A Guide To The Magnuson-Moss Warranty Act" »

Antitrust laws in the United States - commonly known as competition laws outside of the U.S. - have evolved over the years with an ongoing effort to maintain and support fair competition. The major statute which concerns antitrust law is the Sherman Antitrust Act, originally enacted in 1890. One of the primary goals of the Sherman Act is to investigate, restrict, and reduce monopolies.

A monopoly exists when one person, group, or company is the exclusive supplier of a particular type of product. This means that one entity controls the supply of a good or service, giving that entity an enormous amount of power in negotiating the provision of that good or service. Ultimately that leads to unnecessarily high prices.

For example, American Telephone & Telegraph (AT&T) was a monopoly during much of the twentieth century in the United States in which the company held a monopoly on phone service. Indeed for seventy years, AT&T maintained the slogan: "One Policy, One System, Universal Service." The company continued to grow in strength as it began buying smaller telephone companies such as Western Union Telegraph. While the government allowed the monopoly for many years, it finally broke up the company in 1984, with the division of AT&T into seven companies, of which only three remain today: AT&T, Verizon and Qwest.

Continue reading "Antitrust Law - Promoting Fair Competition in Commerce" »

The Appellate Division recently issued an important decision on "stigma" due process claims under New Jersey's Civil Rights Act. The case involved a gym teacher in the Newark Public School system. He did not have tenure.

Several accusations were made against the teacher, the first that he had disciplined students in gym class by allegedly kicking them and, in one instance, locking them in a "cage" made from a table flipped on its side which trapped the boys in the corner of the gym. He was also alleged to have demanded "that the boys fight like animals and kill each other in your make shift cage." Allegations were also made of inappropriate physical contact by the teacher with students.

The Newark public school system's investigation report indicated that the complaints were "unfounded." However, a meeting was to be held regarding the allegations. The focus was the cage incident, at which the students confirmed the incident, contradicting their prior interview with the investigator, who recommended that defendant be transferred to a high school, rather than disciplined. Thereafter, the teacher was warned in writing, and thereafter terminated.

After the teacher was fired, he had difficulty finding a job. He hired a private investigator who called the school district pretending to be a prospective employer asking for a reference for the teacher. The principal and vice-principal, also named as defendants, indicated that "there was a DYFS situation" (DYFS was New Jersey's child protection agency), but could not provide any information, and indicated that plaintiff had then been " released." Although she would not say why, the vice-principal said words to the effect that the school cared for its children who were the priority and should be safe and sound at all times, and then said "so I think you can be able to determine something from that."

Continue reading "Due Process and "Stigma" Under the New Jersey Civil Rights Act" »

When you sell your house for less than you owe on your mortgage it is referred to as a "short sale". This is one option available when you find you can no longer make your mortgage payments, and the outstanding principal balance on your mortgage is higher than the fair market value of your house. The offer must be submitted to your lender, along with a detailed statement of all the costs of the sale and any other items which must be paid when the house is sold. The short sale can only proceed if it is approved by the lender. In other words, the lender must agree to accept less than what is owed on the mortgage. In the current economic climate, short sales are occurring with greater frequency. When a homeowner cannot make the mortgage payments on his home, this option relieves the homeowner of the burden of those payments. The alternatives are often foreclosure by the lender, bankruptcy or, if the homeowner qualifies, a mortgage modification.

The buyer of a short sale property typically gets a good value, he buys the property at its fair market value, but pays less in a depressed real estate market than if the house were listed for sale by the homeowner - as the homeowner would have to seek a price that is sufficient to cover repayment of his current mortgage balance. When the market rebounds, a short sale buyer can typically sell the property for a significantly higher price than he paid. There are, however, a few things to keep in mind.

A homeowner seeking a short sale is typically in financial distress. The homeowner seeks a short sale because he cannot make his mortgage payments. The short seller will not have the resources to make repairs, and it is likely that maintenance and repair of the home have been deferred due to his financial situation. The short sale lender will be accepting less money than they are owed on the property, and the lender will be unwilling to make any repairs. The short sale buyer must therefore be prepared to purchase the home in "as is" condition. The buyer can expect to invest additional monies repairing the home after the purchase.

As a short sale buyer, you must be prepared to wait. The short sale process is a long one. The short sale lender determines the timing. The lender will require a home appraisal. It will require details of the sale from the seller, and it will usually take time to consider the offer and whether it will approve it. The lender sometimes proposes a counteroffer. It often takes months, especially if there are other liens or judgments against the property which need to be resolved or included in the monies paid at closing.

The attorneys at McLaughlin & Nardi can assist you with the short sale process. Contact one of our attorneys by e-mail or call 973-890-0004.

New Jersey's Consumer Fraud Act (the "CFA") is one of the broadest, strongest, and most far-reaching consumer protection laws in the country. The CFA states that it is unlawful for any person to use any unconscionable commercial practice in the sale of any goods, services, or even real estate in some cases.

The New Jersey Legislature enacted the CFA in 1960. Amendments in 1971 expanded the Act's reach and purpose and included provisions to allow for individuals to bring private lawsuits rather than only allowing public actions by the Attorney General. However, the State still plays a significant part in enforcing the Act, led by the New Jersey Division of Consumer Affairs, Office of Consumer Protection.

In the attempt to encourage private actions and reduce the burden to the State in enforcing the CFA, the Act included the ability for claimants to recover treble (triple) damages, reasonable attorneys fees, and litigation expenses. This was done so that even those with little means to bring an action could recover their losses no matter how small, and, in the process, the punitive nature of the damages would further discourage those who would otherwise be tempted to use deceitful or fraudulent practices against others.

Since the CFA is a remedial piece of legislation courts tend to interpret the Act's language very broadly with the aim of providing the most consumer protection. However, the CFA does have some limits and generally will not apply to claims such as denial of benefits by insurance companies, claims regarding employee benefit plans covered by the Employee Retirement Income Act ("ERISA"), claims regarding hospital services, employment claims, or claims against the government, public utilities, or licensed professionals. "Licensed professionals" typically include accountants, insurance agents, architects, doctors or other professionals where the claimant could have alternative options for recourse such as through malpractice claims.

Continue reading "The New Jersey Consumer Fraud Act" »