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Daily Decision Service Alert: Vol. 22, No. 67 ? April 8, 2013
New Jersey Law Journal
STATE COURT CASES
BANKING AND FINANCIAL INSTITUTIONS
06-2-9515 Wells Fargo Bank, N.A. v. Dominguez, App. Div. (per curiam) (14 pp.) Plaintiff Wells Fargo Bank, N.A. appeals from an order dismissing without prejudice its complaint to foreclose a mortgage executed by defendants. The trial judge determined that the notices of intention Wells Fargo served prior to filing the foreclosure complaint did not comply with N.J.S.A. 2A:50-56(c)(11), a provision of the Fair Foreclosure Act (FFA). The question here is whether Wells Fargo was the "lender," within the meaning of the FFA, when it served the notices. The judge found the several notices of intention Wells Fargo served deficient because the mortgage was assigned after they were issued. The assignment does not state the date on which the loan was sold. The appellate panel concludes that the record does not include sufficient competent evidence to establish when Wells Fargo obtained possession of the note. Therefore, Wells Fargo has not established the predicate fact upon which the argument rests that it held the note prior to the assignment of the mortgage. The panel affirms the trial judge's determination that the notices of intention did not comply with the FFA. The panel notes that this order of dismissal is not based on the merits of the foreclosure action but solely on Wells Fargo's failure to establish that it served notices of intention conforming with the requirements of the FFA, which it may correct by service of a conforming notice.
CIVIL PROCEDURE APPEALS
07-2-9516 Rolon v. Sellers, App. Div. (per curiam) (6 pp.)This is an appeal from the grant of summary judgment ordering defendant State Farm Indemnity Company to extend uninsured motorist coverage (UM) to plaintiff. The panel declines to reach the substantive issue raised on appeal - whether the alleged responsible driver, who had a "basic" automobile policy, N.J.S.A. 39:6A-3.1, without personal liability coverage, is considered an "insured" or merely an "underinsured" driver - because summary judgment was granted on an incomplete record without adequate findings of fact and conclusions of law. It vacates the judgment and remands for additional proceedings, so that judgment can be rendered pursuant to Rule 1:7-4(a).
20-2-9517 B.J. v. S.J., App. Div. (per curiam) (4 pp.) Defendant S.J. appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act (the Act), obtained by his wife, plaintiff B.J. The predicate offense alleged in the complaint was that defendant made terroristic threats to plaintiff. The court found the predicate act, that defendant said, while arguing with plaintiff, from whom he was separated, "You better remember, I've got a lot of guns in the house," and that the statement constituted a terroristic threat. In seeming conflict with the finding, however, the judge noted without comment defendant's explanation that he made the statement about the guns innocently, as on the day of the incident, plaintiff was going in and out of the house, packing her car, and defendant feared that plaintiff might forget to lock the door and leave his gun collection unsecured as she had in the past. In this case, too much was left unsaid whether defendant was a credible witness, which section of the statute applied, and the facts upon which the determination of future need for protection rested. Therefore, the appellate panel remands for the trial judge to make supplemental findings of facts and state conclusions of law as required by Rule 1:7-4(a).
20-2-9518 Lane v. Lane, App. Div. (per curiam) (5 pp.) The parties in this long-running post-judgment litigation over parenting time with their three children have engaged in litigation since 2006, two years after their divorce and their negotiated agreement to share legal and residential custody of their children. Defendant appeals from an order denying his motion to replace the parties' parenting coordinator. The parenting coordinator replaced a prior coordinator, a lawyer, who had asked to be relieved. The new coordinator was a retired New Jersey Family Part Judge. In Milne v. Goldenberg, the Appellate Division addressed the propriety of a court compelling use of a parenting coordinator not in conformity with the Supreme Court's Implementation Guidelines for the Parenting Coordinator Pilot Program. The Milne panel concluded that although parties to a matrimonial dispute may make their own agreements regarding their use of a parenting coordinator, a Family Part Judge ordering the appointment of a parenting coordinator must comply with the Supreme Court's established Guidelines. The Pilot Program terminated on November 26, 2012. As the trial court's October 23, 2012 order ended the involvement of the parenting coordinator defendant sought to have removed her, the matter is now moot.
27-2-9519 Salem Lafayette URA L.P. v. Lasane, App. Div. (per curiam) (7 pp.) In this landlord-tenant matter, plaintiff Salem Lafayette URA, L.P., appeals from the Special Civil Part dismissal of its complaint for possession and from the denial of its motion for reconsideration. The panel reverses and remands for entry of a judgment for possession, finding that the judge erred in sua sponte vacating the consent judgment defendant had signed agreeing to the immediate entry of a judgment for possession, to vacate the apartment and that plaintiff could evict her if she failed to vacate, since none of the triggering events in Rule 4:50-1 existed to vacate the consent judgment, and, although defendant never filed a motion to vacate the judgment, even assuming that she had sought to vacate under Rule 4:50-1(f), she showed no exceptional circumstances.
14-2-9520 State v. Dowens, App. Div. (per curiam) (11 pp.) Here, where defendant did not challenge the probable cause basis for the issuance of the search warrant, which was supported by a sworn affidavit from a police officer, and it was executed at the time and place indicated in the warrant, and defendant did not challenge the veracity of the recreated inventory of items seized and only alleges the failure to comply with the procedural requirements of Rule 3:5-5(a) - failure to provide the residents with a copy of the search warrant and an inventory of items seized and failure to file the completed inventory and return of the search warrant with the court in a timely manner - the panel holds that the technical violations which occurred are ministerial missteps that have previously been rejected as a basis to invalidate an otherwise valid search warrant. It therefore reverses the trial court's order granting defendant's motion to suppress the evidence seized pursuant to the warrant.
FEDERAL COURT CASES
46-7-9521 Estate of Lagano v. Bergen County Prosecutor's Office, Dist. Ct. (Hochberg, U.S.D.J.) (8 pp.) In this action contending that the deceased was shot as a result of Prosecutor's Office personnel's disclosures to alleged members of organized crime families that the decedent was an informant for the Division of Criminal Justice, and asserting claims for violation of the decedent's civil rights under 42 U.S.C. §§1983 and 1985 and the New Jersey Civil Rights Act, the court grants defendant's motion to dismiss with prejudice because (1) the BCPO was acting within its classical function of investigating criminal activities and conducting criminal prosecutions and thus acted as a state agency and as such is not a person under §§ 1983 and 1985, (2) plaintiffs claim under the New Jersey Civil Rights act is for a violation of rights as to the state-created danger theory, thus the BCPO is not a person under the NJCRA because he is not a victimized property owner, and (3) the BCPO is entitled to immunity under the Eleventh Amendment. [Filed March 22, 2013]
11-7-9522 TBI Unlimited LLC v. Clearcut Lawn Decisions LLC, Dist. Ct. (Kugler, U.S.D.J.) (10 pp.) Clearcut contracted with defendant Safeguard to provide lawn maintenance services; plaintiff subcontracted with Clearcut to provide those services. After Clearcut failed to pay plaintiff for completed law maintenance, plaintiff filed this action. The court grants defendants' motion to dismiss the claim alleging violation of the New Jersey Prompt Payment Act against Clearcut, holding that an agreement to perform lawn moving services concerns the mere maintenance and upkeep of land and is not a contract to "improve real property" under the NJPPA. The breach of contract and quasi-contract claims against Safeguard are dismissed because plaintiff does not allege any facts from which the court can infer a contractual relationship between plaintiff and Safeguard, and plaintiff's allegations are insufficient to establish the existence of an agency relationship between Clearcut and Safeguard. The quantum meruit and unjust enrichment claims against Safeguard fail because plaintiff fails to make a sowing of an expectation of compensation from Safeguard. [Filed March 25, 2013]
23-7-9523 National Interstate Insurance Co. v. Champion Truck Lines, Inc., Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) Plaintiff National Interstate Insurance Co. seeks a declaratory judgment against Defendants Carolina Casualty Insurance Company and Champion Services, Inc., declaring that National Interstate is not primarily liable for the damages resulting from a truck accident in which John Davis was injured. Davis and Carolina Casualty filed motions for summary judgment, seeking to establish that National Interstate is the primary insurer because the truck that injured Davis was a hired auto pursuant to the terms of the National Interstate insurance contract. Davis was injured when he was struck by a chassis attached to a tractor trailer being driven by Defendant Paul Dillard, a Champion employee. At the time of the accident, Champion was insured by Carolina Casualty under a Commercial Transportation Policy. Third Party Defendant Northstar Services, Ltd., the designated carrier, was insured by National Interstate. The motions of Davis and Carolina Casualty are denied because Northstar did not hire the Champion tractor and, therefore Northstars policy is not primary. [Filed March 21, 2013]
LABOR AND EMPLOYMENT
25-7-9524 Troncone v. Velahos, Dist. Ct. (Kugler, U.S.D.J.) (11 pp.) In this action alleging that defendant, a New Jersey attorney, violated the Fair Labor Standards Act and the New Jersey Wage and Hour Law by failing to pay plaintiff, a sales representative for National Foreclosure Consulting Group, which operated as part of defendant's firm, and others similarly situated, minimum wage for the hours they worked and for failing to tender overtime pay for hours worked in excess of 40 per week, plaintiff moves for final certification of a proposed opt-in class for the FLSA claim and a proposed opt-out class for the NJWHL claims. The court denies without prejudice her motion to certify the FLSA opt-in collective action because the court has been supplied only with the partial fruits of discovery and has insufficient information to allow it to conclude that the matter is ready for trial. It grants her motion to certify the Rule 23(b) opt-out class on her NJWHL because it finds that she has satisfied the Rule 23(a) and (b)(3) requirements. [Filed March 25, 2013]
LABOR AND EMPLOYMENT
25-7-9525 Wiggins v. String, Dist. Ct. (Hillman, U.S.D.J.) (20 pp.) Plaintiff Juan Wiggins, a former employee of Village Shop Rite, brings this complaint against the Union Defendants regarding his termination of employment. Plaintiff filed three prior actions against essentially the same defendants in federal court. The facts he alleges stem from his termination on March 21, 2009, and are substantially similar to those alleged in his three prior complaints. Plaintiff asserts that on March 12, 2009, Local Union 152 Shop Steward and Shop Rite dairy manager, Defendant Hawkins, met with Plaintiff and the store manager, Defendant Wilks, and demanded that Plaintiff be terminated for failure to follow proper cleaning procedures. Plaintiff represents that after he began circulating a petition to remove the shop steward, he was told by the Unions business agent, Defendant DelVicario, on March 18, 2009, to refrain from conducting union business during work hours. On March 19, 2009, Plaintiff claims that he met with Union Treasurer, Defendant Benigno, who allegedly promised to bring the matter to the attention of Union President, Defendant String. Plaintiff contends that on March 21, 2009, he was terminated for participating in Union Activities while working. Plaintiff appears to assert claims against the Union Defendants for a breach of fiduciary duty of fair representation. Plaintiffs claims are subject to dismissal because they are precluded under the doctrine of res judicata. Also, Plaintiff must timely show cause within twenty (20) days, or he will be enjoined from filing any claims stemming from his March 2009 termination without prior leave of Court. [Filed March 25, 2013]
REAL ESTATE MORTGAGES
34-7-9526 Graddy v. Deutsche Bank, Dist. Ct. (Kugler, U.S.D.J.) (9 pp.) In this action alleging that defendant Wells Fargo Bank committed negligence, gross negligence and fraud and violated the New Jersey Consumer Fraud Act and breached the covenant of good faith and fair dealing when it qualified plaintiffs for a loan they could not actually afford, the court grants Wells Fargo's motion to dismiss. The court rejects Wells Fargo's argument that plaintiffs' claims amount to a claim for improvident lending which has not been recognized by a New Jersey, finding that this does not preclude a plaintiff from asserting claims stemming from tortious acts that could otherwise be styled as an improvident lending claim. However, plaintiffs have failed to plead a claim for negligence or gross negligence because they cannot establish that defendant owed them a duty of care; the fraud claim fails because plaintiffs cannot establish that defendant made any material misrepresentation to them; the CFA claim fails because plaintiffs cannot identify any unlawful conduct by the bank, they have not pled that they suffered any ascertainable loss, and they have not pled the claim with the requisite particularity; and the good faith/fair dealing claim fails because plaintiffs have not alleged that the bank engaged in any conduct apart from that which the contract expressly permitted, in bad faith for the purpose of depriving them of their rights under the contract. [Filed March 25, 2013]
TORTS PERSONAL INJURY
36-7-9527 Witasick v. Habrecht, Dist. Ct. (Hillman, U.S.D.J.) (18 pp.) This matter stems from a personal injury dispute between Plaintiff, a New Jersey citizen, and Defendants, a married couple residing in Florida. Defendants own a house in Marlton, New Jersey, which they lease to third-party Defendant, Plaintiff's family trust. Plaintiff lives in the house. On November 19, 2009, a portion of a staircase gave way under Plaintiff's feet, causing him to fall and injure himself. Plaintiff filed suit in state court and Defendants removed the case on the basis of diversity jurisdiction. Plaintiff filed a motion for remand. In the alternative, Plaintiff has filed a motion for jurisdictional discovery and for an evidentiary hearing. Plaintiff argues that the Court lacks subject matter jurisdiction. Plaintiff further alleges that the exercise of diversity jurisdiction is not proper and that Defendants removal did not abide by the statutory procedure. Plaintiff also asserts that the equities in this case favor remand. The Court finds that complete diversity of citizenship exists amongst the parties, and that the amount in controversy is likely to exceed $75,000. The Court also finds that the removal procedure was not defective, and that the equities do not favor remand. Thus, the Court has subject matter jurisdiction pursuant to the diversity jurisdiction statute. Plaintiffs motion to remand will be denied. The Court also denies Plaintiffs request to engage in jurisdictional discovery. Finally, Plaintiffs request for an evidentiary hearing is denied. [Filed March 25, 2013]
36-7-9528 Grynberg v. Goldman Sachs Group Inc., Dist. Ct. (Cecchi, U.S.D.J.) (11 pp.) Plaintiffs bring this action against defendants GS Group, a New York resident, and Goldman Sachs International, alleging that they engaged in an international conspiracy to block plaintiffs from accessing capital markets, thereby impairing their ability to obtain financing for oil and gas exploration and production projects in the United States and abroad. They assert claims for tortious interference with contract, tortious interference with economic opportunity, and civil conspiracy. The court finds that venue in New Jersey is improper under 28 U.S.C. § 1391(b)(1), (2) or (3) but that the interests of justice are best served by transfer pursuant to § 1406(a). Since the action could have originally been brought in the Southern District of New York, GS Groups motion to dismiss the case for improper venue is denied, but its alternative request seeking transfer of this action to the Southern District of New York is granted: its alternative request that the action be transferred based on convenience of the parties is denied as moot. GS Groups motion to dismiss for failure to state a claim is denied without preiudice: it may re-file the motion with the transferee court. Plaintiffs cross-motion to amend and plaintiffs motion for substituted service are denied without prejudice; they may re-file these motions with the transferee court. [Filed March 22, 2013]