January 30, 2011
January 27, 2011
Consumer Law and Foreclosures
FORECLOSURE INVESTIGATION
There is a possible foreclosure freeze in New Jersey.
There have been many internet reports of major lending institutions such as JPMorgan, Chase and Bank of America and other large mortgage companies making misleading or fraudulent statements to evict struggling borrowers from their homes.
The Indiana Attorney General, Greg Zoellersaid, was indicating that the initial phases of an investigation would be whether or not industry employees or ‘robo-signers’ were authorized and signed thousands of foreclosure documents without reviewing the files as they are legally required to do under most laws. There are also allegations from plaintiff’s attorneys that lenders forged signatures and wrongly notarized documents.
There have also been reported lawsuits that the foreclosed homeowner is alleging that the mortgage company did not have appropriate assignment of all of their rights to begin the foreclosure.
As a practical matter, this means that each person who is subject to a foreclosure lawsuit, whether it be New Jersey or any other state, needs to make appropriate and very careful evaluation of the allegations and the paperwork submitted by the lending institution, whether it be Bank of America or some other large lender. You need to take a very close look at the paperwork and make sure that all is in order. This might be difficult since as a layperson you might not understand the exact paperwork that is needed to file a foreclosure. However, in many states, there are various services that are available to the public for help on this matter.
As a very basic matter, you need to take a close look at the entity or individual who is attempting to take your home. You then need to see whether or not they provided, with the filing of the court documents, whether or not they had the correct right to take your home. This means that if you are unsure as to the business who is attempting to take your home, please look at the paperwork and see if they have the appropriate assignment of rights from a prior lender.
It is very important to do something rather than just sit back and do nothing, assuming that you have no defense. Just because you have not made your mortgage payments on time is not an automatic determination that a bank is entitled to take possession of your home. You should be careful and take all required steps to make sure that whoever is trying to take your home is doing it properly.
January 20, 2011
Subpoenas in New Jersey (part 3)
2 Defendants' Subpoenas Are Unreasonable and Oppressive Because They Seek to Violate the Privacy Rights of Plaintiff
Plaintiff further objects to the subpoenas on the grounds that they are unreasonable and oppressive because they seek the production of documents which would violate the privacy rights of defendants. Defendants’ subpoenas for employment records must be rejected as unreasonable and oppressive.
Where information of a confidential nature is sought from a non-party, as is the case here with respect to personal records, the party seeking disclosure must make a strong showing of need. See e.g. Litton Industries, Inc., v. Chesapeake and Ohio Co., 129 F.R.D. 528, 530 (E.D. Wisc. 1990). A subpoena should not be used as a general effort by a party to conduct a "fishing expedition" into confidential material. See e.g. Dixon v. Rutgers, 110 N.J. 432 (1988) (protective orders appropriate to protect college peer review materials from excessive disclosure).
New Jersey courts have consistently required that litigants cannot inspect confidential information until they have made a showing of compelling need for that information. Harmon v. Great Atlantic & Pacific Tea Co., Inc., 273 N.J. Super. 552, 558-59 (App. Div. 1994); Ullman v. Hartford Fire Insurance Co., 87 N.J. Super. 409, 415 (App. Div. 1965). In Ullman, a case involving an insurance claim, the Appellate Division established the standard for balancing a litigant's discovery rights against his adversary's privacy rights. In reversing an Order compelling the insured to produce tax returns that might show the cause or magnitude of a potential loss, the Court held:
[T]he production of tax returns should not be ordered unless it clearly appears they are relevant to the subject matter of the action or to issues raised thereunder, and further, that there is a compelling need therefore because the information contained therein is not otherwise readily obtainable. [citation omitted.]
The average taxpayer is sensitive about his return and wishes to keep it from publication. He is entitled to that privacy unless there is a strong need to invade it. If disclosure will not serve a substantial purpose, it should not be ordered at all. If ordered, disclosure should be no greater than justice requires. Ullman, 87 N.J. Super. at 415-16.
Similarly, in Harmon, the Appellate Division held that the right to privacy trumped a discovery request seeking to test the bona fides of an emotional distress claim. In reversing an Order requiring the production of financial records, the Court reasoned:
[B]ecause of the scope of the, present order, many personal, unrelated matters would be open to scrutiny without sufficient cause. If plaintiffs are compelled to hand over the records of their banking and credit card transactions, their entire personal lives are open to scrutiny. We find, in these circumstances, that such broad and unfocused inquiry is not necessary and that less intrusive inquiries ... would better serve the interests of justice.
* * *
We do not mean to imply that the privacy interests here rises to the level that wholly bars discovery. Rather, we hold that on these facts the privacy interests presented are of sufficient importance to be recognized and protected against such unlimited intrusion. Mere inconvenience or expediency to the defendant will not establish a need sufficient to overcome the privacy interests presented here. Harmon, 273 N.J. Super. at 558 – 59 (emphasis added).
Admittedly, the right of privacy will not bar essential discovery between litigants.
January 15, 2011
The New Jersey Consumer Fraud Act to be Watered Down and SIGNIFICANTLY Helps Car Dealerships
The New Jersey Consumer Fraud Act is to be Watered Down, significantly.
New Jersey has one of the strongest Consumer Fraud Acts in the United States.
There is pending legislation to change the Consumer Fraud Act and make it easier to avoid civil penalties for fraud.
The changes include provisions to exempt "out of state transactions" from the protections of the act.
The changes include the limitation on attorney fees.
The changes include the requirement for detrimental reliance AND makes treble or triple damages optional.
There are no real disincentives to discourage fraud. This bill encourages bad business practices.
January 11, 2011
Anti-Consumer Bill: New Jersey to Welcome Corrupt Businesses
Amy Handlin and John McKeon are sponsoring an anti-consumer bill that would change the business landscape in New Jersey.
A key provision of the new New Jersey Consumer Fraud Act would exempt out of state transactions. This means the following: if someone in New Jersey commits consumer fraud upon a non-resident (living in NY, PA or CT) there are no consequences.
"a. apply only to transactions that take place in the State"
The Consumer Fraud Act would encourage businesses to travel to New Jersey to deceive people in other states, on the internet or otherwise.
This bill makes consumer fraud easier and will encourage corrupt businesses and individuals to come to New Jersey where they will be protected. Amy Handlin is the co-sponsor.
January 10, 2011
Car Salesmen and Dealserships to be Protected with Proposed Changes in Consumer Fraud Act
Car Salesmen and Dealerships to be Protected with Proposed Changes in Consumer Fraud Act.
Amy Handlin and Jack McKeon have sponsored and introduced ANTI-CONSUMER legislation to reduce consumer rights and protect car dealerships.
The changes in the Consumer Fraud Act would exempt or limit liability against businesses that are already regulated, such as car dealerships. It would also limit liability for consumers who consummate out-of-state transactions. This arguably contradicts other legislation that has been introduced to increase liability for those committing consumer fraud.
The combination of these two laws would probably create conflicts and a haven in New Jersey for fraudsters.
January 9, 2011
Consumer Arbitration
ARBITRATION AGREEMENT
What do you do when you make demand for arbitration and the business fails to comply?
It is not uncommon that if you have purchased a consumer good, it is likely that you have signed an arbitration agreement contained in the small print. The fact that the agreement is contained in small print or in the back of the document most likely will not result in a change in result that you cannot go to court but have to handle the matter through the arbitration process. These two major arbitration resources are the American Arbitration Association and JAMS. Well, what do you do when the business fails to respond or they are in violation of either American Arbitration Association or JAMS due to process protocols?
1. If the business does not respond under American Arbitration Association rules, you are permitted to pay their fee and proceed in their absence. You would then be forced to obtain a judgment and domesticate it in the Superior Court and take whatever action is needed to collect on such a judgment.
2. If the business is in violation of the due process protocols or has not complied with their rules so as they are not handling the matters, there is no option but to proceed to Superior Court. It would be apparent that the business would be in breach of the contract for not permitting the consumer to go through the arbitration forum.
New Jersey Supreme Court has held that a consumer might bargain away their right to go to court as contained in the small print in a consumer contract. The business’ placement of this ‘court waiver’ in the fine print is enforceable and appropriate.
January 3, 2011
Car Salesmen Protected in Proposed New Jersey Consumer Fraud Act Changes
CHANGES IN THE NEW JERSEY CONSUMER FRAUD ACT TO PROTECT CAR SALESMAN
Amy Handlin is the co-sponsor on this bill to protect car salesman
John McKeon is the primary Sponsor on this bill to protect car salesmen.
There is a bill pending in the Assembly which significantly and permanently change the way that businesses transact business in the State of New Jersey and the rights afforded to consumers. The bill is labeled [A3333] and if passed by the legislature and signed by the governor, it would forever and permanently damage the rights of New Jersey consumers. There are various and daunting adoptions of anti-consumer rights in this bill. Unfortunately, this bill is sponsored by a democrat and a republican.
Initially, the substance of this bill would reduce consumers’ rights to proceed on claims against car dealerships.
A nickname for this bill should be the Car Dealership Protection Act. A major portion of the exemptions written to this bill would exempt businesses who were regulated by other agencies and/or authorities. This means that a car dealership who would be regulated by the Banking and Insurance and the Division of Motor Vehicles would likely be exempt from the protections that consumers have under the New Jersey Consumer Fraud Act.
Hypothetically, if a car dealership were to have to a new car on their lot, crash it and sell this vehicle which was damaged, the plaintiff would be without rights under the New Jersey Consumer Fraud Act. This would mean that an individual could not sue the direct car dealership for consumer fraud and seek attorney’s fees and triple damages. The car dealerships would gain significant protection if this bill were passed. This bill is definitely and certainly anti-consumer in every way, shape and form. This bill would protect businesses that engaged in fraudulent acts, to the detriment of consumers.
It would force the conduct of businesses to be reduced to the lowest common denominator. In effect, the businesses that were acting honestly and within the law would be encouraged and forced to act in the manner inconsistent with the law as a result of the competition with the illegal or improper businesses. This is anti-competitive and will cost New Jersey consumers a significant amount of money. There would be almost no consequences for violating the law.
January 2, 2011
Subpoenas in New Jersey (part 2)
In spite of its broad scope generally, discovery "is not unbridled and unlimited." Berrie v. Berrie, 188 N.J. Super. 274, 282 (App. Div. 1983). Given the broad scope of defendants' document demands upon these non-parties, the burden upon the non-parties in complying with defendants' discovery demands, and the costs of enforcement of the subpoena, clearly outweigh any commensurate benefit, if any, to the plaintiff in this case.
1. Defendants’ Subpoenas Are Unreasonable And Oppressive Because They Seek Documents Equally Attainable From the Defendants.
The subpoenas served by defendants are unreasonable and oppressive because they request that a non-party produce documents more easily attainable from defendants, parties to the litigation, if any such information were relevant and not confidential. It is well-settled that a subpoena should not be used as a substitute for discovery more appropriately obtained through depositions and interrogatories. See Wassertein v. Swean & Co., 84 N.S. Super. 1, 6-8 (App. Div.) certif. denied, 43 N.J. 125 (1964). Furthermore, where the information subpoenaed is more readily attainable through discovery directed at a party, a shifting of the demand of production to a non-party is unreasonable and oppressive. See Harvey v. Nissan North America, Inc., 2005 WL 10501 (N.J. Super. Ch.) (granting Motion to Quash in part as "shifting of the burden to a non-party is impermissible and any duplicative requests need not be honored"). Moreover, defendants have offered no adequate cause to warrant shifting the burden of discovery to these non-parties to this matter. As such, defendants' subpoenas should be quashed as unreasonable and oppressive.
