Friday, January 29, 2016

Delinquent Owners Can Run, But They Cannot Hide

Feeling uncomfortable with  the length of time that it took for the  Office of Foreclosure to enter a Final Judgment of Lien Foreclosure for a Fort Lee condominium, I was excited when the week of the sheriff’s sale finally rolled around. After all, I made the recommendation to foreclose.

The owner was personally served with the lien foreclosure complaint. Thereafter, she was nowhere to be found despite the efforts of an investigation firm. No bank accounts, no employer.

A call from the chambers of the Chancery Judge two  days prior to the sale for an  emergent conference call startled me.  The owner was in court requesting the sale to be adjourned to salvage her home.  Over my objection, the judge granted the two week adjournment to allow the owner to assemble the funds required to make the payment. Where would the money be found?

The  board and its management were anxious. After spending good money on legal fees, was this a ploy for the owner to buy time to file a bankruptcy?

Almost two weeks later, I was elated to receive a call from the sheriff’s office advising that the writ had been paid in full! Management was stunned at the amount of money collected!

The diligent efforts finally reaped the treasured reward.  It’s never too late, don’t hesitate.

Thursday, January 28, 2016

Name Lending Leads to Attorney Suspension

What’s in a name? The New Jersey Law Journal recently reported that the Supreme Court issued a three month suspension to an attorney for “lending” his name to a law firm where he was a nominal partner and had no role in the business of the firm.

According to the Disciplinary Review Board (“DBR”), the attorney did not practice in or receive compensation from the firm bearing his name but allowed his signature to be stamped on documents for certain real estate and mortgage modification matters. The DBR noted that the activity constituted, inter alia, assisting with the unauthorized practice of law.

Tuesday, January 26, 2016

Aesthetics Prove Costly For New Jersey Condominium Owner

In a recent Appellate Division decision, a lawsuit that began as a simple action to collect delinquent condominium assessments proved to very costly to the owner. The history of the litigation is instructive on the basic principals of condominium law in New Jersey and the proof required to support a claim for damages under the New Jersey Consumer Fraud Act.

Very simply, the owner successfully made a motion, in the Special Civil Part, to vacate a default judgment for delinquent assessments.  The judgment was less than $6,000.00. The owner filed an answer which asserted various counterclaims and a third party action against the developer of the condominium.

Point I: The judge in the Special Civil Part correctly noted, that the since the obligation to pay assessments is unconditional, the counter-claim and the third party action would be severed from the association’s claim for  delinquent assessments and the owner’s claims would be pursued in a separate action in the Law Division.

Point II:  In connection with action to collect the delinquent assessments, the judge awarded the condominium association legal fees in excess of $30,000.00 incurred in defense of the action to collect fees.  There need not be proportionality between the amount sued for and the legal fees required to collect it. 

Point III:   The third party complaint alleged, inter alia, misrepresentation and a claim for violation of the New Jersey Consumer Fraud Act (“CFA”). The owner alleged that in purchasing the condominium, he relied on certain representations concerning the installation of an aquatic garden which was never accomplished. The CFA requires a showing of an “ascertainable loss” which the owner alleged to be the diminution in value of the condominium, i.e., the price he paid and the market value. On summary judgment, the Appellate Division found that demonstration of an “ascertainable loss” under the CFA required the production of expert testimony concerning value which the owner failed to produce. The third party complaint was dismissed.

The take away from the case is that the law in New Jersey requires unconditional payment of condominium fees notwithstanding conditions that are alleged to interfere with the use and enjoyment of a unit.  Attempts to assert claims in defense of actions to collect assessments can prove to be very costly.      

Wednesday, January 20, 2016

The Worldwide Web Of Judgment Enforcement

Citing the importance of post judgment discovery to aid in the process of judgment enforcement, the Appellate Division, First Department  has determined that a  subpoena served on the New York branch of an international bank, seeking information about accounts and records from branches outside of New York, is enforceable.  B & M Kingstone, LLC v. Mega International Commercial Bank Co, 131 A.D.3d 259 (1st Dept. 2015).
Although service of the subpoena on the New York branch does not render the New York bank account subject to attachment, the subpoena does require the production of all information about the accounts and records located outside of New York and the United States.

New York Appeals Court Confirms Condominium Lien is a Continuing Lien

Don't Leave Money Behind
In a recent decision, the Appellate Division, First Department confirmed that a condominium claim of lien is, in fact, a continuing lien.   Why is this significant? Typically, the time frame between the recording of a lien for past due maintenance fees and the commencement of a lien foreclosure action could be several months or sometimes longer.  Since condominium maintenance fees and late charges continue to accrue each month, the amount due on the lien increases.

According to the decision in Board of Managers of Netherlands Condominium v. Trencher, 128 A.D.3d 452, 9 N.Y.S.3d 213 (1st Dept. 2015), in a foreclosure, the condominium association is entitled to recover all the charges and fees that have accrued since the recoding of the lien and not only  the amount stated to be due in the lien.

Tuesday, January 19, 2016

When it Comes to Emotional Support Animals, a Turkey is Not Fowl Play

Several days ago, we all cackled when Fox News aired  a story questioning whether a turkey is "fowl play".  The story involved an airline passenger accompanied by a turkey. The airline  permitted the turkey to board the flight and to obtain its own seat once the passenger demonstrated the turkey was, in fact, an emotional support animal.  

Notwithstanding that most condominium documents contain a prohibition against residents keeping animals on the premises, the New Jersey Law Against Discrimination and the Federal Fair Housing Law may require a "reasonable accommodation" to an emotionally or physically impaired individual.

Boards can adopt a resolution that establishes a clear and concise procedure to follow once a request for a support animal is received. 

The individual making the request must establish that he or she suffers from a disability, as defined by law, and requires the physical assistance or emotional support of an animal to reasonably accommodate the disability.   The fact that the association may be required to allow the animal does not exempt the maintenance of the animal from the condominium rules and regulations which may prohibit barking that disturbs the peace of other residents. The rules may also limit certain malicious breeds. 

Fear Not the Dreaded Legal Fees: Part Two

BY:  ANGELA M. MORISCO, ESQ. Very often boards of condominiums and other community associations hesitate to engage in litigation ag...