False Child Molestation Claims Held To Amount To Child Abuse

Charles Toutant New Jersey Law Journal 11-27-2012 A mother subjected her daughter to abuse and neglect by making baseless reports that the child was molested by her father, the Appellate Division ruled Tuesday. By lodging the claims, and coaching the girl to corroborate them, the mother showed a reckless disregard for her child, the court said in DYFS v. C.O., A-2387-11. The girl’s well-being was further jeopardized by the stress of physical and psychological examinations during the sex-abuse investigations, the court added. The girl, referred to by the pseudonym Amy, was born in November 2006 after a brief romance between her parents, referred to as Sally and Charles. Sally resisted letting Charles spend time with Amy, but he won visitation rights shortly before her first birthday. In April 2010, when Amy was 3, Sally took her to an emergency room and said Charles had penetrated the girl’s vagina with a vibrating device while she was visiting him. An investigation was conducted in New York, where Charles lived. The New Jersey Division of Youth and Family Services (DYFS) remained involved because Amy is a state resident. New York police found no evidence of sexual abuse, based on a physical examination, conflicting accounts by Amy and Sally, and interviews of guests at a party attended by Charles and Amy at the time of the alleged abuse. DYFS and Child Protective Services (CPS) in New York also found no sexual abuse. They cited the same sources, as well as a videotape of the party showing Amy playing happily and photographs of Amy’s genital and anal areas, taken by Sally’s father before and after the visit, which did not display any injury. DYFS and CPS also cited counselors’ concerns that Amy’s statements had been prompted by Sally. While that investigation was under way, Sally made additional allegations of sexual abuse against Charles and insisted that Amy have a second, invasive physical exam. Again, no signs of sexual abuse were found. DYFS contended that Sally’s continuing conduct was harmful to Amy, in violation of N.J.S.A. 9:6-8.21 to -8.73, which defines child abuse and neglect. A judge granted DYFS’s motion to transfer residential custody of Amy to Charles on May 13, 2010, pending a fact-finding hearing. The hearing was conducted on 12 nonconsecutive days between November 2010 and July 2011. In December 2011, Bergen County Superior Court Judge Bonnie Mizdol ruled that DYFS had sustained its burden of proof that Sally exhibited a pattern of reckless disregard that harmed Amy. Mizdol cited the “repeated, unnecessary medical, physical and psychological examinations” and Sally’s attempts “to shape and manipulate” Amy’s behavior to further Sally’s goal to isolate Charles “from any meaningful parental relationship with his daughter.” Sally appealed, contending that Mizdol’s factual findings were not supported and that Sally’s constitutional rights were violated by the nonconsecutive hearing dates. Appellate Division Judges Clarkson Fisher, Carmen Alvarez and Alexander Waugh Jr. affirmed, adding that Sally had not intended to hurt Amy. The panel cited the stress of multiple investigations, Sally’s insistence on a second physical examination and counselors’ notes that Amy had an enhanced knowledge of sexual matters for a child of her age. In addition, the panel said Mizdol properly characterized the mother’s conduct as “abuse or neglect.” Noting that the child-abuse statute requires such conduct to rise above the level of mere negligence, and requires conduct that is “grossly or wantonly negligent” or “reckless,” the appeals court cited Mizdol’s finding that the mother’s conduct was “reckless.” Sally also claimed that her pursuit of a clear answer as to whether her child was sexually abused did not constitute grossly or wantonly negligent behavior. The appeals judges noted, however, that Sally had received a clear answer from Child Protective Services and the police but would not accept it. “The reckless disregard found by the judge stemmed not from Sally’s efforts to rule out sexual abuse, but rather from her refusal to recognize a clear answer once she had one and her continued, baseless assertions that Charles had abused Amy,” the panel added. Sally also disputed Mizdol’s conclusion that she had coached Amy, citing a counselor who supported her view. But the appeals court said Mizdol’s finding was appropriately supported by two other counselors and an interview of Amy by a New York child-abuse investigator and a sheriff’s officer. The panel also rejected Sally’s claim that her rights were violated by nonconsecutive hearing dates. Although R. 5:3-6 requires a trial to run over consecutive days, the delays were caused by scheduling issues, including Sally’s work schedule and the judge’s trial calendar, the panel said. Sally’s lawyer, James Doyle of Swenson & Doyle in Hackensack, says the ruling unfairly labels his client a child abuser because she sought further reassurance that Amy had not been abused. DYFS did a poor job of communicating to Sally the outcome of that inquiry, says Doyle. He adds that Sally no longer suspects Charles of child abuse and still hopes to regain primary custody but the abuse and neglect finding makes that difficult. DYFS was represented by Assistant Attorney General Andrea Silkowitz. Lee Moore, a spokesman for the Attorney General’s Office, says his agency will not comment.

 

NEW CASE: N.G. v. J.P. FAMILY LAW — Domestic Violence – 50 YEARS DIVORCED IS NOT TOO LONG TO BE CONSIDERED DOMESTIC VIOLENCE

N.G. v. J.P.

http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664

FAMILY LAW — Domestic Violence
Although the parties have not resided together in more than 50 years, defendant‘s sporadic harassment of plaintiff over that period, arising from their status as former household members, conferred jurisdiction on the Family Part to issue a final restraining order under the Prevention of Domestic Violence Act.

By Judith Nallin 06-20-2012 N.G. v. J.P., A-3247-10T3; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication June 18, 2012. Before Judges Baxter, Nugent and Carchman. On appeal from the Chancery Division, Family Part, Essex County, FV-07-321-11. DDS No. 20-2-6661 [34 pp.] Defendant J.P. appeals from the issuance of a final restraining order against him under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. Defendant and plaintiff N.G. are siblings who have not resided together since 1960. J.P. harbors a deep resentment of N.G. and their mother, B.P. The record describes confrontations between J.P. and N.G. in the 1960s when he allegedly hit her over the head with a baseball bat, in 1989, when he confronted her in a school parking lot, and in 1991, when he encountered her at a local pizzeria. As a result of those incidents, N.G. obtained an order for preliminary restraints barring J.P. from contacting or disparaging her and from conducting any sort of public protest adjacent to her residence. In 1991, a judge entered a FRO prohibiting J.P. from coming within four blocks of the residences of B.P. and N.G.. The FRO was vacated in 1993 as to B.P. only. In February 2010, J.P. began picketing in front of N.G.’s residence. On 29 occasions he marched back and forth repeatedly saying “F— you G——–,” “Burn in hell,” and “I hope you rot in hell.” He often made an obscene gesture in which he raised each of his middle fingers. As a result, N.G. filed a domestic-violence complaint against him. The judge ruled that J.P. had committed the predicate acts of stalking and harassment and issued the FRO barring him from contacting N.G. and from entering any portion of Millburn Township. J.P. responded that he would not comply with the court’s order. N.G. was awarded attorney fees. Held: The harassment of plaintiff by defendant over the intervening decades — although sporadic — conferred jurisdiction on the Family Part to issue the FRO since the present incidents arose directly from the parties’ acrimonious family relationship and their status as former household members. Defendant’s conduct constituted harassment and stalking. The award of attorney fees to plaintiff is affirmed, as such fees are expressly available under the act and the judge correctly applied the factors in Rule 4:42-9(b). However, because the FRO failed to give sufficient consideration to J.P.’s legitimate need to attend church and visit his physician in Millburn, the matter is remanded so that the judge may set precise conditions respecting those activities. J.P. claims that the court lacked jurisdiction to issue the FRO and that the judge committed reversible error when he refused to dismiss N.G.’s complaint. The panel says the act defines a victim of domestic violence to include, “any person … who has been subjected to domestic violence by … any … person who is a present or former household member.” The panel applies the six-factor test for determining whether jurisdiction exists based on the parties’ status set forth in Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006). As to the first factor, the nature and duration of the prior relationship between the parties, the panel agrees with the trial judge’s finding that although N.G. and J.P. have been estranged for decades, his attempt to re-establish contact with her springs from the antagonism he harbored toward her while they were members of the same household. The long duration of the parties’ relationship, albeit composed of sporadic episodes of intense strife, supports the conclusion that this factor was satisfied. As to the second factor, whether the past domestic relationship provides a special opportunity for abuse and controlling behavior, the panel says J.P.’s testimony concerning the motivation for his behavior makes it clear that if N.G. were not his sister, he would not have behaved toward her as he did. Her testimony supports the conclusion that events during her childhood made her fearful of his conduct and threats in adulthood. Thus, the second factor weighs in favor of jurisdiction under the act. The panel says that while the parties have not lived together for more than 50 years, the third factor, the amount of time that has elapsed since the parties last lived together, is only one factor to be considered in determining the availability of the act’s protection. The fourth factor is the nature and extent of any contact between the parties between the time they ceased living together and when the plaintiff seeks protection under the act. The panel says that although J.P.’s conduct in 1989 and 1991 is distant in time both from when the parties stopped living together and from when N.G. sought protection under the act, the incidents were of such severity as to weigh in favor of jurisdiction. As to the fifth factor, the nature of the precipitating incident, the panel says that case law has held that when the precipitating incident relates to the prior domestic relationship, jurisdiction under the act is appropriate. Because J.P.’s behavior in 2010 was motivated exclusively by what he perceived as B.P.’s and N.G.’s unjust treatment of him, and his conduct was persistent and threatening, the nature of the precipitating incident weighs in favor of jurisdiction. Finally, the panel says the sixth factor, the likelihood of ongoing contact or a continuing relationship, weighs in favor of jurisdiction since defendant’s testimony provides ample evidence that his behavior will not cease. Because all of the Coleman factors, with the possible exception of the third, weigh in favor of jurisdiction, the panel affirms the denial of defendant’s motion to dismiss. As to defendant’s argument that the FRO was oppressively and impermissibly broad, the panel notes that remedies under the act are liberally construed for the protection and safety of victims and the public at large. Noting J.P.’s defiant attitude and his vow to disobey the FRO, it says extraordinary measures are necessary for N.G.’s protection. Therefore, the panel affirms the ban on defendant entering Millburn. However, it remands to give J.P. a fuller opportunity to describe his church attendance and any visits to his doctors in Millburn. If he fails to do so, his right to seek such relief will be deemed waived. As to defendant’s claim that the judge erred by finding his conduct constituted harassment and stalking, the panel reviews the statutory definition of stalking and concludes that the trial court correctly found that J.P. committed the predicate offense of stalking where he maintained a visual and physical proximity to N.G., his conduct was repeated 29 times, he threatened N.G. by offensive hand gestures and shouting curses at her, and he caused emotional distress. Similarly, the panel reviews the definition of harassment and concludes that J.P.’s conduct constituted harassment where he communicated with N.G., his conduct undermined his claim that his intent was other than to harass her, and his repeated conduct was likely to cause annoyance or alarm. The panel affirms the award of counsel fees, finding that such an award in a domestic-violence proceeding requires no special showing and that the judge carefully applied all of the factors specified in Rule 4:42-9(b), RPC 1.5(a) and Schmidt v. Schmidt, 262 N.J. Super. 451 (Ch. Div. 1992). For appellant — Jack Venturi (Jack Venturi & Associates; Venturi and Michael B. Roberts on the briefs). For respondents — Mark H. Sobel (Greenbaum, Rowe, Smith & Davis; Sobel and Dennis F. Feeney on the brief).   http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664

Benjamin G. Kelsen, Esq. named a “Super Lawyer”

Benjamin G. Kelsen, Esq., of  The Law Offices of Benjamin G. Kelsen, Esq. LLC, a Teaneck New Jersey based firm with offices in Lakewood and Newark, has been named to the New Jersey Rising Stars list as one of the top up-and-coming attorneys in New Jersey for 2012.  Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection  for this respected list is made by the research team at SuperLawyers. SuperLawyers, a Thomson-Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a state wide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The Rising Stars lists are published nation wide in Super Lawyers magazines and in leading city and regional magazines across the country.

For more information about SuperLawyers, go to superlawyers.com. The first SuperLawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 SuperLawyers was acquired by ThomsonReuters the world’s leading source of intelligent information for business and professionals

Benjamin G. Kelsen

visit superlawyers.com

Statement by NSC Spokesman Tommy Vietor on Attack in France on Behalf of the President

THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

March 19, 2012

Statement by National Security Council ( NSC ) Spokesman Tommy Vietor on Attack in France on

on behalf of President Barak Obama and The White House

We were deeply saddened to learn of the horrific attack this morning against the teachers and students of a Jewish school in the French city of Toulouse.  Our thoughts and prayers go out to the families and friends of the victims, and we stand with a community in grief.  We join the Government of France in condemning this unprovoked and outrageous act of violence in the strongest possible terms.

Legal issues slow foreclosures

SUNDAY, NOVEMBER 6, 2011    LAST UPDATED: SUNDAY NOVEMBER 6, 2011, 10:22 AM

BY KATHLEEN LYNN

STAFF WRITER

THE RECORD

In a small Bergen County courtroom one recent Friday, a sheriff’s officer auctioned off two foreclosed properties in a matter of minutes, as a handful of investors kept their eyes open for bargains.

DAVID BERGELAND/STAFF PHOTOGRAPHER

BUY THIS PHOTO

Few buyers attended a foreclosure auction of two properties at the Bergen County Courthouse.

It was a far cry from the typical sheriff’s auction of mid-2010, when 15 or more properties were auctioned weekly and up to 100 investors crowded the courthouse’s large jury room.

Sheriff’s auctions are among the most visible symbols of the housing crisis, which left many homeowners saddled with mortgages they couldn’t afford. But foreclosure auctions have slowed dramatically since questions arose more than a year ago about “robo-signing” — that is, sloppy paperwork by mortgage lenders and servicers.

Requesting a review

Homeowners who lost their homes to foreclosure in 2009 and 2010 can have their cases reviewed to see if their mortgage companies did anything wrong, the federal Office of the Comptroller of the Currency said last week.

Mortgage servicers were to begin mailing letters last week to borrowers, telling them how to request an independent review if they believe they were injured by flawed foreclosure proceedings. If the reviewer finds they were harmed, the customer may receive compensation or another remedy.

The companies are America’s Servicing Co., Aurora Loan Services, Bank of America, Beneficial, Chase, Citibank, CitiFinancial, CitiMortgage, Countrywide, EMC, Everbank/Everhome, First Horizon, GMAC Mortgage, HFC, HSBC, IndyMac Mortgage Services, Metlife Bank, National City, PNC, Sovereign Bank, SunTrust Mortgage, U.S. Bank, Wachovia, Washington Mutual and Wells Fargo.

Requests for review must be received by April 30, 2012. For more information, visit IndependentForeclosureReview.com.

Though lenders were given the go-ahead in August to start foreclosing again in New Jersey after showing a judge they were following the rules, they have been slow to resume activity.

The reason: an August appellate court decision, Bank of New York v. Laks, according to Kevin Wolfe, head of the state’s Office of Foreclosure. In that case, the court dismissed a foreclosure, finding the lender violated the state Fair Foreclosure Act because it didn’t properly identify itself in a notice sent to the troubled homeowners.

Under new state court rules, lawyers working for foreclosing plaintiffs have to personally certify that they have checked the facts behind a foreclosure filing with an employee of the lender or the lender’s servicer. Many have indicated to Wolfe that they are reluctant to sign such a certification, because they’re concerned that the lender’s paperwork may not meet the requirements set out in the Laks decision.

E. Robert Levy, executive director of the Mortgage Bankers Association of New Jersey, said he believed there was no “real question about the validity of the loans being put through the foreclosure process.”

“The money is still owed; it’s just a matter of making sure you meet the procedural requirements, and we agree the requirements should be met,” Levy said.

Advocates for distressed homeowners say it’s only reasonable to ask lenders to get the paperwork right when it involves a matter as serious as taking someone’s home.

“Any delay that there is in New Jersey is occurring only because lenders haven’t followed the law,” said Margaret Lambe Jurow, a lawyer with Legal Services of New Jersey, who has represented homeowners in foreclosure cases. “Had they filed these things properly, they’d be in and out.”

The implications go beyond the losses suffered by homeowners and lenders. Housing analysts say the troubled real estate market can’t recover until the large number of distressed properties are finally sold. The properties make up a so-called “shadow inventory” — not on the market yet, and likely to ultimately sell at a large discount to other properties, pulling down housing values. Foreclosed homes typically sell at a discount of 20 percent or more, according to research.

Mortgage paperwork issues stem from the fact that most mortgages are not held by the local bank; they’re bundled into securities and resold to investors. In these cases, the company that a homeowner writes monthly checks to — the mortgage servicer — probably does not actually own the loan.

In the Laks case, for example, Sarah Laks’ mortgage was serviced by Countrywide Home Loans, but the actual owner was a trust managed by the Bank of New York. When Laks, of Lakewood, defaulted on the loan, she got a notice of intention to foreclose from Countrywide, but it did not mention the real owner, as required by the state’s 1995 Fair Foreclosure Act.

A lender’s attorney who spoke on condition of anonymity said that in the years since the Fair Foreclosure Act was passed, it’s been very common for these notices to name only the servicer, not the actual holder of the loan, as required by the Laks decision.

When mortgages were being written and sold to investors at a furious pace during the housing boom, the mortgage machine allegedly cut corners on recording who actually owns a mortgage and, therefore, has the right to foreclose.

 

 

Federal investigation

 

The questions over robo-signing slowed foreclosures to a trickle this year in New Jersey, after the state’s chief justice ordered six big lenders to show they were following the rules last December.

As a result, New Jersey homeowners are staying in their homes, on average, for more than 2 1/2 years without paying their mortgages before they are evicted, according to RealtyTrac, a California company that tracks the foreclosure market.

On a national level, the mortgage servicers’ questionable foreclosure practices are under investigation by the federal government and most of the nation’s attorneys general. The investigation is expected to result in a settlement reported at $25 billion; in exchange, lenders would be released from some legal claims.

Ira Rheingold of the National Association of Consumer Advocates predicted that the attorneys general’s settlement will include a road map for how lenders can establish ownership of a mortgage in cases where the transfer was poorly documented.

For example, he said, lawyers sometimes use a “lost note affidavit,” where a lender’s employee with knowledge of the loan signs an affidavit certifying that the lender actually owns it, even if the documentation is missing.

“How are you going to prove ownership — that really is the big question,” Rheingold said. “At some point people really need to be able to sell their houses. … If there’s a mortgage, somebody is owed the money. How do you straighten out this mess?”

Questions about this chain of ownership are being watched by the title insurance industry. In a recent case in Massachusetts, a court ruled that a buyer who purchased a property after an improper foreclosure was not the legal owner.

So far, there haven’t been enough such cases to make title insurance companies back off from writing policies, according to the American Land Title Association. But the industry is continuing to watch the issue, an ALTA official said.

It’s not clear when the foreclosure pipeline will start moving again in New Jersey, though foreclosure lawyers are watching another case that brings up issues similar to the Laks case. That case, U.S. Bank v. Guillaume, is scheduled to be heard by the Supreme Court soon. In the Guillaume case, an appellate court made the opposite decision as was made in the Laks case, and upheld a foreclosure action against an East Orange homeowner who said the notice of intention to foreclose didn’t properly identify the lender.

The lender’s lawyer, speaking anonymously, said the Supreme Court could get the pipeline moving again by requiring that the lender be identified in notices going to troubled homeowners, as the Laks ruling requires — but only in the future, not in cases already filed.

“We’re hoping the Guillaume case clears this up,” said the lawyer.

E-mail: lynn@northjersey.com

D.C. Circuit to Consider Case of Art Taken by Nazis

The Hungarian government is appealing the denial of its bid to dismiss a lawsuit filed by heirs to a Jewish Hungarian art collector demanding the return of art taken by the Nazis and Hungarian officials during World War II.

U.S. District Judge Ellen Segal Huvelle denied the bulk of the Hungarian government’s motion to dismiss on Sept. 1, finding that the descendants of Baron Mor Lipot Herzog could sue for the return of pieces of Herzog’s collection currently in the possession of Hungarian cultural institutions.

Attorneys for the Hungarian defendants filed notice (PDF) Monday that they intend to challenge Huvelle’s ruling before the U.S. Court of Appeals for the District of Columbia Circuit.

Nixon Peabody partner Thaddeus Stauber, lead counsel for the Hungarian government, said in a statement that his client anticipates “asking the U.S. appellate court to acknowledge that the relevant international agreements and compensation programs in Hungary and the U.S. long ago resolved any modern day claims to the remaining artworks.”

The Hungarian government had argued in its motion to dismiss that it already settled claims to art and other items taken during World War II over the last few decades, including the Herzog collection.

Huvelle did dismiss part of the heirs’ complaint, deferring to a previous ruling by a Hungarian court finding that 11 of the more than 40 pieces in question from the collection did belong to the Hungarian defendants, which include the Hungarian government as well as the Hungarian National Gallery, the Museum of Fine Arts, the Museum of Applied Arts and the Budapest University of Technology and Economics.

Michael Shuster of New York’s Kasowitz, Benson, Torres & Friedman, who is representing Herzog’s heirs, said Tuesday morning that “the issues that Judge Huvelle dealt with in her opinion are all well-grounded in…other precedents.”

“It’s unfortunate that they continue to want to avoid addressing the merits,” he said.

In the Sept. 1 opinion (PDF), Huvelle found that Herzog’s heirs offered “substantial and non-frivolous” claims that the Hungarian government violated international law in taking the paintings, meaning the Hungarian defendants are not immune against litigation under the Foreign Sovereign Immunities Act.

Governments are given wide breadth to take property from its citizens, Huvelle wrote, but in this case, the Hungarian government was accused to taking property from Jewish individuals whose citizenship rights had been stripped away under anti-Semitic laws in effect at the time.

According to the complaint (PDF), Herzog’s family had attempted to hide the collection, which included several thousand pieces, after Hungary allied with Nazi Germany, but it was discovered and seized. The plaintiffs in the case are three of Herzog’s great-grandchildren, who are suing on behalf of all of his heirs.

New Jersey Mortgage Default Rate Is Country’s Third Highest, Report Says

A new report by the Mortgage Bankers Association says New Jersey is third in the nation in the number of loans either in foreclosure or on the brink.

Mary Pat Gallagher

08-23-2011

A new report by the Mortgage Bankers Association says New Jersey is third in the nation in the number of loans either in foreclosure or on the brink.

More than one in 10 New Jersey mortgage loans are already in foreclosure or are 90 days or more in arrears, says the association’s National Delinquency Survey for the second quarter of 2011, which looked at almost 43.9 million mortgage loans across the country, including 1,252,958 in New Jersey.

The state’s 11.36 percent rate of “seriously delinquent” mortgages was third highest in the U.S. Florida topped the list with 18.68 percent, followed by Nevada, with 14.34 percent.

At the opposite end of the scale were North Dakota with a 1.76 percent rate, and Alaska with 2.24.

In addition to serious delinquencies, another 3.18 percent of New Jersey mortgages are 30 days late and an additional 1.24 percent are 60 days late, says the report, released Monday..

New Jersey’s ranking was driven by a high number of pending foreclosures, nearly 8 percent. Again, only Florida (14.39 percent) and Nevada (8.15 percent) have more.

The report does not state the number of loans in foreclosure, but Kevin Wolfe, assistant director for the Administrative Office of the Courts’ Civil Practice Division, says 107,464 residential foreclosure cases filed since 2009 remain open. He points out that the figure includes settled cases for which no stipulations of dismissal have been filed.

The glut of foreclosures is the product of a flood of filings that crested in 2009, at 66,717, including non residential foreclosures, and dropped to 58,445 for 2010.

Filings slowed to a trickle at the end of last year, after the judiciary froze uncontested residential foreclosures by the six biggest lenders so it could address robo-signing and other abuses that had come to light.

Wolfe estimates that those six — Bank of America, JPMorgan Chase, CitiBank, Ally Financial, OneWest Bank and Wells Fargo — file at least 70 percent and possibly more than 80 percent of uncontested residential foreclosures.

Their sizeable share of foreclosures has been evident in the precipitous plunge in filings since theirs were suspended last December. Only 6,090 foreclosures had been filed in 2011 as of the end of July, a drop of 90 percent from 2010.

Monthly filings fell from 4,358 last November, the month before the freeze, to 399 in January. They have inched back up since then, to 1,368 for July.

Filings are sure to rebound much faster now that the courts have resumed processing foreclosures for five of the big six foreclosers. All but Ally Financial, formerly known as GMAC Mortgage, got the go-ahead to resume foreclosures during the week of Aug. 15.

The five persuaded a court-appointed special master, retired judge Richard Williams, that they have stopped offensive practices — such as signing court documents that falsely stated personal knowledge of the facts of the mortgage; failing to review documents on which certifications or affidavits were based; and forging signatures — and have taken steps to prevent recurrence.

In her Dec. 20, 2010, order, Mercer County Presiding General Equity Judge Mary Jacobson said the court had “become increasingly concerned about the accuracy and reliability of documents submitted to the Office of Foreclosure” and was acting on an exigent basis “to protect the integrity of the judicial foreclosure process.”

In addition to requiring lenders to prove they have adopted and are following proper procedures, the Court has amended the rules governing foreclosure.

Among other changes to Rules 4:64-1 and 2 that took effect in June, lenders’ lawyers are now required to attach a Certification or Affidavit of Diligent Inquiry to foreclosure complaints and motions describing the lawyer’s communication with an employee of the lender or loan servicer who has personally reviewed the mortgage file and confirmed the accuracy of the information in court filings.

The courts are bracing for a spurt in new filings as well as “the large pent-up pool of cases to be moved,” by adding staff at the Office of Foreclosure and around the state, says Wolfe.

As of Tuesday, he had not yet seen the anticipated surge in filings but planned to talk with Williams about how to handle the monitoring of foreclosure filings to ensure that the new safeguards are being followed. The six lenders agreed to the monitoring in a stipulation in March.

The press release accompanying the Mortgage Bankers report suggested another cause for the New Jersey backlog. It called the existence of a judicial foreclosure system, which some states like California and Michigan do not have, the “single biggest factor” in why some states have big backlogs because it “lengthen[s] the foreclosure timeline and increase[s] the number of loans that sit in foreclosure, all other things being equal.”

Ex-Spouse’s Angry, Repeated Texting Not Harassment

Ex-Spouse’s Angry, Repeated Texting Not Harassment, Appeals Court Says A string of 18 text messages in three hours from one divorced parent to the other does not necessarily amount to harassment, a state appeals court says in reversing a final restraining order.

David Gialanella

08-22-2011

 

Excessive texting from one divorced parent to the other does not necessarily amount to harassment, a state appeals court said Monday in a published decision reversing a final restraining order. The husband’s sending of 18 angry messages in the space of three hours “shows only the convergence of modern technology and the foibles of human judgment,” the Appellate Division held in L.M.F. v. J.A.F., A-121-10. “Our ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions” and has “created a commensurate expectation of an equally instantaneous response from the recipient,” Judge Jose Fuentes wrote for the court. While texting is a good communication mode between estranged couples because of brevity and impersonality, it still is susceptible to “frustration and misuse” if parties do not cooperate, Fuentes said, calling the husband’s behavior “dysfunctional” but not done with the requisite intent to harass. The parties, who were divorced in 2006, conversed mostly by texting about parenting issues concerning their 19-year-old son and 17-year-old daughter, over whom they shared custody, though the children lived primarily with their mother. Husband J.A.F. had remarried and his current wife also joined in. In March 2010, the current wife complained that L.M.F. failed to notify them about a banquet for their daughter’s high school basketball team. The current wife then texted L.M.F. eight times between 7:32 a.m. and 8:19 a.m. on May 25, 2010, for not informing J.A.F. about a board of education meeting at which the basketball team was honored. The messages said J.A.F. and his wife “can go where ever we want TOGETHER” and tell L.M.F. to “Save ur breath for someone who gives a shit about what you think.” Then, on June 25, 2010, J.A.F. sent L.M.F. 18 text messages between 6:50 a.m. and 11:34 a.m. about their daughter’s SAT score, asking for an update and then accusing her of withholding information. “You are playing this game by not telling me t[h]ings about our kids,” he wrote, demanding that she keep him informed “so we both don’t look like ass hole parents that don’t talk.” L.M.F. testified that her lone response said she was not aware of the score and he should contact their daughter. On June 28, J.A.F. again texted about the SAT score, threatening to call his attorney and adding, “FYI, I pay you $2,800 a month more than what you make.” L.M.F. testified that when she called to ask him to stop, he became angry and called her “a fucking scorned woman.” J.A.F. sent two more texts that day, at around 5 p.m., inquiring about their daughter’s whereabouts. L.M.F. petitioned for a restraining order and, at trial, testified about an incident in December 2005, when, after J.A.F. moved out of their home, he returned and angrily asserted his right to come and go, yelling at her from a distance of about five feet. Hunterdon County Superior Court Judge Hany Mawla asked L.M.F. whether she was fearful, to which she responded, “yes.” She claimed J.A.F. intermittently barraged her with texts whenever the children were unresponsive to him. J.A.F., in turn, argued that L.M.F. withheld information about the children and provoked him with inflammatory e-mails. Mawla issued a final restraining order, finding that L.M.F.’s nonresponse to J.A.F.’s texts did not excuse his conduct, which amounted to the predicate act of harassment under N.J.S.A. 2C:33-4. Mawla cited J.A.F.’s use of offensive language in calling her a “fucking scorned woman,” his current wife’s use of profanity in one of her texts and the timing of his early-morning messages, which the judge said were likely to annoy her. But Fuentes, joined by Judges Victor Ashrafi and William Nugent, reversed, saying Mawla did not find J.A.F. sent the messages to harass his ex-wife. L.M.F. did not dispute that J.A.F.’s purpose was to inquire about their daughter, and the texts became an annoyance only after she ignored them, the panel said. When she did, “it was not unreasonable for defendant to assume he was being snubbed or ignored,” Fuentes wrote. “He manifested his frustration by resending the same message, over and over again, in a misguided attempt to provoke some kind of response from plaintiff,” though the subject was always legitimate concerns about their children, Fuentes wrote. Even if L.M.F. established the predicate harassment, Mawla did not find — as the Domestic Violence Act requires — that relief is necessary to prevent further abuse, the panel said, writing off the December 2005 incident as “not part of a pattern of verbal or physical abuse.” Also, L.M.F. offered evidence of her fearfulness only when prompted by Mawla, the court said, noting that judges “must take special care to craft questions in such a manner to avoid being perceived as an advocate for any side of a dispute.” As for his current wife’s communiques, there was no evidence J.A.F. directed her to send those messages and Mawla should not have considered them in ruling on the restraining order, the panel said. J.A.F.’s attorney, Michael Speck of Keith Burns’ firm in Iselin, did not return a call. L.M.F. was pro se on appeal.

Does Clicking ‘I Agree’ Create a Binding Contract?

Refining the ‘fair and forthright’ standard for online consumer agreements
Refining the ‘fair and forthright’ standard for online consumer agreements

Elliot D. Ostrove andBrian W. Disler

08-17-2011

As consumers continue to buy more and more products over the Internet, courts are being presented with opportunities to examine the validity of online agreements.

For example, on May 13, the Appellate Division decided Hoffman v. Supplements Togo Mgmt., LLC, 419 N.J. Super. 596 (App. Div. 2011), holding that the forum-selection clause contained on the defendant’s website did not meet the “fair and forthright” standard, and was therefore presumptively unenforceable. The court in Hoffman foreshadowed the likelihood of growth of this area of the law, stating: “[C]onsumers are increasingly purchasing products and services over the Internet. As those Internet transactions have become more prevalent, so too have legal disputes proliferated over the contractual rights created in cyberspace between buyers and sellers.”

Prior to Hoffman, courts in several jurisdictions, including New Jersey, had decided cases involving the validity of online agreements. The New Jersey Appellate Division first dealt with this issue in Caspi v. Microsoft Network, 323 N.J. Super. 118 (App. Div. 1999). In Caspi, the plaintiffs, members of the defendant’s Internet service, filed suit claiming, among other things, consumer fraud. The defendant moved to dismiss the complaint for lack of jurisdiction, claiming that the suit could only be brought in the state of Washington, as per a forum-selection clause found in the membership agreement plaintiffs allegedly agreed to when they clicked through the website.

The court in Caspi looked at the circumstances under which the plaintiffs were presented the online agreement. Before becoming a member of the defendant’s service, a prospective subscriber was prompted to view a membership agreement containing the forum-selection clause. The membership agreement appeared on the webpage next to blocks providing the choices I Agree and I Don’t Agree . Registration could proceed only after the potential subscriber had assented to the membership agreement by clicking on I Agree .

In determining the enforceability of the forum-selection clause, the court in Caspi applied a “fair and forthright” standard. The court stated that, “[i]f a forum selection clause is clear in its purport and has been presented to the party to be bound in a fair and forthright fashion, no consumer fraud policies or principles have been violated.” (Emphasis added.) The court found that the contractual terms were presented in a fair and forthright manner as the plaintiffs “were free to scroll through the various computer screens that presented the terms of their contracts before clicking their agreement.” The court therefore upheld the enforceability of the online contractual terms, including the forum-selection clause.

The Second Circuit Court of Appeals dealt with a similar dispute in Specht v. Netscape Communs. Corp ., 306 F.3d 17 (2d Cir. N.Y. 2002). In Specht, the plaintiffs brought suit in the Southern District of New York against the defendant, a provider of computer software programs. The defendant moved to compel arbitration, arguing that the plaintiffs’ claims were subject to an arbitration provision contained in a contract the plaintiffs had allegedly accepted when they downloaded the program.

The court in Specht applied California law, which, similar to New Jersey law, required reasonable notice of the online contract as a prerequisite to its enforceability. Unlike the contractual provisions in Caspi, however, the provisions in Specht were located in a “submerged” portion of the webpage. The submerged portion could not be seen by the consumer unless he or she scrolled down the webpage, beyond the material that initially filled the screen. The court in Specht found that the submerging of the contract terms did not meet the standard of reasonable notice. The court stated, “a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.” The arbitration provision was therefore found unenforceable.

More recently, the Eastern District of Pennsylvania dealt with the enforceability of an online agreement in Feldman v. Google, Inc., 513 F. Supp. 2d 229 (E.D. Pa. 2007). In Feldman, the plaintiff sued Google regarding its AdWords service. This service allowed a customer, after signing up for an account, to advertise his or her business on Google. Google sought to transfer the case to California, citing a forum-selection clause in the online agreement they claimed the plaintiff agreed to when signing up for AdWords.

In determining whether the forum-selection clause was valid, the court looked at whether the plaintiff was given “reasonable notice” of the online contract. Unlike the defendant in Specht, Google had taken several steps to ensure that its online contract was prominently displayed. Toward the top of the page displaying the contract, a notice stated, “Carefully read the following terms and conditions. If you agree with these terms, indicate your assent below.” Additionally, a link to a printer-friendly version of the contract was offered at the top of the contract window. At the bottom of the webpage, viewable without scrolling down, was a box with the words: Yes, I agree to the above terms and conditions . If the customer did not click on that phrase, and instead tried to click the Continue button at the bottom of the webpage, the customer could not activate the account.

The court in Feldman found that the manner in which Google displayed its online contract was reasonable. The court distinguished Google’s online contract from the online contract in Specht, pointing specifically to the fact that Google’s customers had to take affirmative action when agreeing to the contract terms. The court stated:

Unlike the impermissible agreement in Specht the user here had to take affirmative action and click the “Yes, I agree to the above terms and conditions” button in order to proceed to the next step. . . If the user did not agree to all of the terms, he could not have activated his account, placed ads, or incurred charges.

The court therefore upheld the enforceability of the forum-selection clause.

It was to the above three cases — Caspi, Specht and Feldman — that the Appellate Division referred in recently deciding whether the online agreement in Hoffman was “fair and forthright.” In Hoffman, the plaintiff, a purchaser of product from defendant’s website, sued the defendant in New Jersey state court, claiming that the defendant had, among other things, violated the New Jersey Consumer Fraud Act. The defendant moved to dismiss the complaint claiming, inter alia, that the plaintiff was precluded from suing in New Jersey because of a forum-selection clause contained within a disclaimer on the defendant’s website. The trial court agreed with the defendant, dismissing the complaint, and the plaintiff appealed.

The Appellate Division overturned the trial court, holding that the placement of the disclaimer on defendant’s webpage failed to meet the Caspi “fair and forthright” standard and, as such, the forum-selection clause contained therein was presumptively invalid. The Appellate Division found that defendant’s “submerging” of the forum-selection clause — deemed impermissible in Specht — was likewise not “fair and forthright.” Specifically, the defendant placed the disclaimer in a position on the website where it was possible for the plaintiff to make his entire purchase without ever seeing the disclaimer if he did not scroll down the page. Furthermore, once the plaintiff added an item to his online “shopping cart,” the site would skip ahead to a new page that did not contain the disclaimer. The Appellate Division highlighted these points, stating that “the forum-selection clause was unreasonably masked from the view of the prospective purchasers because of its circuitous mode of presentation.” The court ruled that the forum-selection clause was presumptively invalid and reinstated the complaint.

In light of Hoffman and the line of cases preceding it, companies that sell products directly to consumers over the Internet should review and, where necessary, revise their website layouts, to ensure that they are conforming to the now further-defined “fair and forthright” standard. Even though the cases cited above all involve forum-selection clauses, the practical application of the decision is not necessarily so limited.

In order to ensure that their online agreements will be enforceable, companies can take some or all of the following steps:

Ensure that the contract provisions are not “submerged” (i.e., the online contract is visible without the customer having to scroll down the page).

If scrolling is necessary to see all of the terms and conditions, have customers take an affirmative step to show their assent to the agreement, such as clicking a button stating, “Yes, I agree to the above terms and conditions” (agreement button).

Only allow customers to make a purchase after they have clicked an agreement button, whether scrolling is necessary or not.

Require users to scroll down through the entire terms and conditions before being allowed to click on an agreement button.

Have users who click on anything other than the agreement button, directed back to the terms and conditions before being allowed to “check-out.”

Provide a link to a printer-friendly version of the contract.

Palisades Park student found guilty in cafeteria fight, but judge gives him a break

Thursday, August 11, 2011    Last updated: Friday August 12, 2011, 10:15 AM

BY KIBRET MARKOS

STAFF WRITER

The Record

<b

A Palisades Park High School student was found guilty Thursday of simple assault after a judge found that he punched another student in the school cafeteria last year.

MICHAEL KARAS / STAFF PHOTOGRAPHER

Buy this photo

High school student Dong Sung An, wearing a white shirt and tie, at a crowded Palisades Municipal Court.

However, Judge Joseph Rotolo declined to sentence Dong Sung An to probation or to perform community service, saying those punishments were too harsh. Instead, he ordered An to pay a $256 fine, ­ a move that his supporters greeted with applause.

An’s trial assumed all the solemnity of a criminal proceeding, with a prosecutor and two defense attorneys who engaged in heated arguments as the trial went on for several hours into the night in Municipal Court.

Four police officers were on hand to keep order in the courtroom, which was filled to capacity with nearly 150 of An’s supporters, some of whom held up placards that read: “Criminal charge is nonsense!” and “An Dongsung is not a criminal!”

The case renewed a debate about how police decide whether to pursue charges against students resulting from school incidents or allow the schools to handle such incidents through their disciplinary procedures. Schools and police departments throughout the state are required to follow a memorandum of agreement to address school safety issues, including gang activity, bomb threats or incidents involving an “active shooter.”

Critics, however, say the push for school safety is leading to a national trend in which even minor school infractions are being criminalized.

The case generated widespread sympathy for An in the Korean-American community. The Korean Consulate in New York sent a letter to Palisades Park Mayor James Rotundo this week, asking him to review whether An was being fairly prosecuted.

An sat by his attorneys and followed the proceedings through a Korean interpreter. The boy he was accused of assaulting last year, when An was 18 and in his junior year at the school, sat on the other side of the courtroom with the prosecutors and his mother.

The boy later took the witness stand and described how he got in line at the school cafeteria, left the line to put down his backpack and returned to his spot in line, angering An who was behind him.

Punches were thrown after some words were exchanged, and the smaller boy testified that he was knocked down and suffered a cut to his lip that required six stitches. The school suspended both students for five days, and An was charged in a criminal complaint with aggravated assault for punching the boy twice in the face. The Bergen County Prosecutor’s Office later downgraded the charge to simple assault.

“We are in court because [the boy’s] mother sent him to a place where he was supposed to be safe, where he was supposed to be protected from incidents like this,” E. Carter Corriston Jr., the municipal prosecutor, said in his closing remarks.

One of the defense attorneys, Vincent Hughes, took a different tone in his closing statement, saying the dispute between the two students should never have ended up in court.

“Are we going to subject these two boys to this level of ridiculousness?” he said. “It says a lot about this community.”

The judge did not agree with him.

“The defense’s attempt to characterize this as something more than just an assault, a fight between two kids, is misplaced,” Rotolo said.

Andrew Kim, a former president of the Korean American Association of Fort Lee, said many people were upset with the prosecution.

“Is it really necessary for the criminal justice system to punish a student for a school fight?” he said.

An’s attorney, B.J. Kim, said he was glad that the judge did not impose probation, community service and other penalties that the prosecutor had requested, but said he was not happy that An was convicted of simple assault. He said the conviction could affect An’s application for American citizenship in the future.

He also called the prosecution “egregious.”

“We spent six hours prosecuting this ridiculous incident,” he said. “Why it has come to this juncture is beyond me.”

E-mail: markos@northjersey.com