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Wednesday, June 24, 2020

Order for ejectment of occupier proper here TERESITA LEONARDO, v. CATALINO TAVERAS,

Order for ejectment of occupier proper here TERESITA LEONARDO,

v.

CATALINO TAVERAS,

     Defendant-Appellant.
_________________________

                   Submitted May 20, 2020 – Decided June 5, 2020

                   Before Judges Mayer and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Passaic County, Docket No. C-
                   000059-15, and Law Division, Docket No. DC-014532-
                   18.
NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-3649-18T3
A-4001-18T3. PER CURIAM In these consolidated matters, defendant Catalino Taveras appeals from a March 15, 2019 order of possession and an April 29, 2019 order denying his motion to vacate a judgment. We affirm both orders on appeal. The facts are straightforward. Defendant and plaintiff Teresita Leonardo are an unmarried couple who cohabitated for nearly twenty years and collectively purchased properties. Together, the parties purchased two properties in Paterson that are the subject of these appeals. One property is located at 266- 68 East 17th Street (the 17th Street property). 1 The other property is located at 340-342 6th Avenue (the 6th Avenue property). In October 2014, plaintiff transferred her interest in two other jointly owned properties to defendant. According to plaintiff, defendant promised to pay her $150,000, which represented the down payment on the 17th Street property, in exchange for the properties she transferred to defendant in October 2014. Plaintiff asserted she paid the mortgage, closing costs, and electric bills for the 6th Avenue and 17th Street properties. In return, plaintiff claimed that defendant promised her a fifty percent share in each property. In 2014, the parties separated. 1 At a point in time not indicated in the record, defendant lived in part of the multifamily home at the17th Street property. A-3649-18T3 2 In August 2015, plaintiff commenced a partition action in the Chancery court to apportion the 17th Street property and the 6th Avenue property and to compel defendant's payment of the promised $150,000 (partition action). The matter proceeded to trial with the judge taking testimony from the parties. In a February 8, 2017 oral decision, the judge compelled defendant to transfer his interest in the 6th Avenue property to plaintiff. He also ordered plaintiff to transfer her interest in the 17th Street property to defendant. In addition, the judge found defendant promised to pay plaintiff the sum of $150,000 in exchange for relinquishing her interest in the 17th Street property and entered judgment against defendant in that amount. He ordered the parties to exchange quitclaim deeds to effectuate the property transfers within thirty days. Defendant never sought reconsideration of the judge's February 8, 2017 order for judgment (February 2017 judgment). Nor did defendant file an appeal from that judgment. Defendant failed to execute a quitclaim deed for the 6th Avenue property. He also failed to pay the $150,000 awarded to plaintiff in the February 2017 judgment. As a result, plaintiff filed an enforcement motion, which was heard by the judge who tried the partition action. Defendant did not oppose the motion. Due to defendant's non-compliance with the court's February 2017 A-3649-18T3 3 judgment, in a July 23, 2018 amended order for judgment (July 2018 amended judgment), the judge compelled defendant to transfer his interest in both the 6th Avenue and 17th Street properties to plaintiff and eliminated the money judgment awarded to plaintiff. Despite awareness of his legal obligations under the February 2017 judgment and July 2018 amended judgment, defendant claimed to have made settlement offers to plaintiff in August 2018 proposing various scenarios that would allow him to retain the 17th Street property. He also contended the quitclaim deed to the 6th Avenue property was signed on October 15, 2018. Because defendant had not executed the quitclaim deed for the 17th Street property, in an October 15, 2018 order, a different Chancery judge appointed an attorney to act on behalf of defendant and to execute a quitclaim deed for both properties. On October 19, 2018, the court-appointed attorney signed and recorded the deed transferring defendant's interest in the 17th Street property to plaintiff. Upon learning his interest in the 17th Street property had been transferred to plaintiff, defendant filed an order to show cause (OTSC) in the partition action. In his OTSC, defendant sought the following relief: restraining plaintiff from collecting rent at the 17th Street property; permitting him to reside at the A-3649-18T3 4 17th Street property; and allowing him to pay the original monetary judgment awarded to plaintiff under the February 2017 judgment in lieu of transferring his interest in the 17th Street property. During the OTSC argument, defendant's then counsel acknowledged his client never filed an appeal from the prior judgments and failed to comply with those judgments. At the OTSC hearing, defense counsel conceded his client "was completely incorrect" by "ignoring [the judgments]." The judge denied defendant's OTSC on November 5, 2018. Because defendant continued to reside at the 17th Street property, on December 20, 2018, plaintiff filed an ejectment action in the Special Civil Part in Passaic County (ejectment action). Defendant sought an adjournment of the trial in the ejectment action based on his filing of a motion to vacate the July 2018 amended judgment in the partition action. The Special Civil Part judge denied the adjournment request and conducted a trial in the ejectment action on March 15, 2019. After listening to the testimony, the Special Civil Part judge entered a March 15, 2019 order for possession in favor of plaintiff. She ordered defendant to vacate the 17th Street property by March 20, 2019 and denied his request for a stay. In her statement of reasons, the Special Civil Part judge found defendant A-3649-18T3 5 was no longer the owner of the 17th Street property based on his failure to comply with the judgments in the partition action. She further found that defendant had "no colorable claim of title or possession" based on the October 19, 2018 quitclaim deed transferring title of the 17th Street property to plaintiff. Although defendant filed his motion to vacate the July 2018 amended judgment a month prior to the trial in the ejectment action, his motion was not heard by the Chancery judge until April 29, 2019. After hearing the arguments of counsel, in an April 29, 2019 order, the judge denied the motion to vacate the July 2018 amended judgment, finding defendant "effectively wants to go back to the . . . original final judgment . . . ." The judge explained that if defendant was dissatisfied with the July 2018 amended judgment, he had the opportunity to file a motion for reconsideration or file an appeal and he did neither. The judge also rejected defendant's claim that the amended judgment was void under Rule 4:50-1(d) due to a lack of findings of fact and conclusions of law consistent with Rule 1:7-4. The judge further found defendant's argument under Rule 4:50- 1(f) inapplicable because defendant failed to establish that enforcement of the judgment would be unjust, oppressive, or inequitable. The judge explained the value of the property, minus the outstanding mortgage, and minus the $150,000 owed to plaintiff under the original final order of judgment, left a differential of A-3649-18T3 6 approximately $27,000. Based on plaintiff's expenses incurred in enforcing her rights in the partition action and her payment of the carrying costs on the properties, the judge found the differential amount was insufficient to set aside the amended judgment as unjust, oppressive, or inequitable. Defendant separately appealed the March 15, 2019 order for possession in the ejectment action and the April 29, 2019 order denying his motion to vacate July 2018 amended judgment. At his request, the appeals were consolidated. On appeal, defendant contends the judge erred in denying his motion to vacate the July 2018 amended judgment. He claims the July 2018 amended judgment should have been vacated because the judge who entered that judgment failed to comply with Rule 1:7-4. In addition, defendant asserts he satisfied the requirements of Rule 4:50-1 in support of vacating the July 2018 amended judgment. The decision to grant or deny a motion to vacate a judgment under Rule 4:50-1 is within the sound discretion of the trial court as guided by principles of equity. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). Unless the trial court's decision was a clear abuse of discretion, it will not be disturbed on appeal. Ibid. (citing Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)). The rule "is designed to reconcile the strong A-3649-18T3 7 interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Mancini, 132 N.J. at 334 (quoting Baumann v. Marinaro, 95 N.J. 380, 392 (1984)). We first consider defendant's argument that the July 2018 amended judgment should have been vacated because the judge who entered that judgment failed to set forth findings of fact and conclusions of law in accordance with Rule 1:7-4. We disagree. The orders on appeal pursuant to defendant's notice of appeal are the April 29, 2019 order and the March 15, 2019 order. The judges who entered those orders provided detailed and well-reasoned findings of fact and conclusions of law in support of their determinations. Defendant's arguments are addressed to the July 2018 amended judgment but he admits he never pursued an appeal from that judgment. We next consider defendant's argument that he presented exceptional circumstances for vacating the July 2018 amended judgment under Rule 4:50- 1(f). Defendant claimed the 17th Street property was his personal residence, A-3649-18T3 8 and plaintiff experienced a windfall when that property was transferred to her. He also asserted lack of notice of plaintiff's enforcement application. 2 Rule 4:50-1(f) gives a court discretion to vacate a final judgment for "any other reason justifying relief from the operation of the judgment or ord er." A motion to vacate under Rule 4:50-1(f) requires proof of truly exceptional circumstances such that "a grave injustice would occur" if the order is enforced. Little, 135 N.J. at 289. A motion under this rule is fact-specific and addressed to the sound discretion of the trial court. Baumann, 95 N.J. at 395. Defendant's argument under Rule 4:50-1(f) is the same as his argument that the July 2018 amended judgment is void because the judge who entered that judgment failed to state his findings of fact and conclusions of law pursuant to Rule 1:7-4. Defendant's failure to comply with the judgments in the partition action, coupled with his failure to file an appeal, do not constitute a "grave injustice" warranting the July 2018 amended judgment to be vacated. Having reviewed the record, we are satisfied that any "imbalance" in the judge's 2 Defendant never argued lack of notice of the July 2018 amended judgment in his motion to vacate. Defendant may not raise a vague challenge to the July 2018 amended judgment based on an argument not presented to the motion judge. See U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super 94, 105 (App. Div. 2016). A-3649-18T3 9 reallocation of property rights between the parties in the partition action was not a grave injustice warranting the vacating of the July 2018 amended judgment. This appeal is nothing more than an improper attempt to appeal from the July 2018 amended judgment. "It is well established that [a Rule] 4:50 motion may not be used as a substitute for a timely appeal." Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co. of N.J., 312 N.J. Super. 516, 519 (App. Div. 1998). We turn to defendant's claims there is "no authority on which a court may convert a money judgment (particularly in or following a divorce) into an order to sign a deed to property over to the creditor[,]" rendering the July 2018 amended judgment void and unenforceable. Defendant failed to raise this argument to the motion judge and therefore the matter is not properly before this court. See U.S. Bank Nat'l Ass'n v Guillaume, 209 N.J. 449, 484 n.6 (2012). Moreover, defendant's merits brief is devoid of any legal authority in support of this argument. Thus, we deem this argument waived based on defendant's insufficient briefing. See Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86, 102-03 (App. Div. 1990). Defendant also appeals from the March 15, 2019 order of possession in the ejectment action. However, defendant did not substantively address that A-3649-18T3 10 order in his merits brief. Because we affirm the July 2018 amended judgment, transferring title of the 17th Street property to plaintiff, and based upon the filed October 19, 2018 quitclaim deed, plaintiff has sole title to the 17th Street property. Therefore, the March 15, 2019 order for possession in the ejection action was proper. Affirmed.

Sunday, April 12, 2020

Kenneth Vercammen’s Law Office new Will preparation online without having to travel to law office and follow up consults over phone & online.

Kenneth Vercammen’s Law Office new Will preparation online without having to travel to law office and follow up consults over phone & online. 

   To assist potential clients and seniors we now offer document preparation remotely and consults. We are concerned about your health and well being.
1. For Wills, Power of Attorney, Living Wills, please email Vercammenlaw@njlaws.com. We will email the interview form.

2. Type response/ Fill in details., email completed Will Questionnaire back. For Wills 
Please type up & fill out completely and email to vercammenlaw@njlaws.com.  Typing name and details is required. Save as word doc or text, not pdf. This form is extremely important. Your accuracy and completeness in responding will help us best help you. All sections and information must be filled out prior to discussing with the attorney. Cannot be handwritten since we cannot cut and paste into the forms.

3. Ken V will call to discuss after typed interview form received.

4. After persons pay by credit card online or payment confirmed from PayPal, we will draft documents and email to you.
5. Ken V will call to answer further questions
6. Sign documents in front of notary and two witnesses [ spouse ok as witness]. Signing instructions provided. UPS stores continue to be open and have notaries. 
    Stay safe but still get your important documents done. We strongly recommend all adults have a Power of Attorney prepared in the event they are temporarily incapacitated or hospitalized. We do require interview forms be completed in full and emailed back so we can provide accurate advice. The doctor’s office similarly has patients fill out details prior to the consult. We also recommend signing a Living Will with COMBINED ADVANCE DIRECTIVE FOR HEALTH CARE. The Living Will contains a Power of Attorney for Health Care & Medical Decisions. In signing your Living Will, you will designate an individual you trust to act as your legally recognized health care representative to make health care decisions for you in the event you are unable to make decisions for yourself.

Wednesday, January 29, 2020

Free Office Space for Transitional or New Attorney and work with Metuchen Public Defender and go to Court & Mentor program- Edison, NJ

              The Metuchen Public Defender Kenneth Vercammen has a space sharing opportunity for new lawyer or recent Transitional attorney to get experience and go to court and learn NJ Law office procedures and handle some Municipal court cases. This is a mentoring experience where you can learn NJ Law Office Procedure. Must be licensed in NJ.
        Help handle Wednesday night 5:15 -7:55pm Metuchen Municipal Court matters and two Friday mornings per month.
              Attorney will be provided with use of desk, plus if needed additional private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle municipal court appearances, Telephone communications with courts, Prosecutors, clients, etc, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.
-Call Courts to follow up on Letter of Representation and scheduling of hearings & call Police Departments to follow up on discovery
- Prepare timesheets on Fatal Accident cases
-Call clients and remind them of hearing dates and what to do
- Update Criminal and Civil blogs with recent cases
-Assist at Senior citizen Will Seminars and Municipal Court programs
               Go to court and get court experience. Excellent opportunity to jump-start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.
https://www.njlaws.com/office_space.html
               Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.
           Excellent mentoring position for the right attorney. Are you hardworking and aggressive?  Visit our website: www.njlaws.comto learn about our office. More details at www.njlaws.com/lease.htm
    If interested, fax, mail , fax or email a resume and cover letter.
KENNETH VERCAMMEN, Esq. Metuchen Public Defender
2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 
(Fax) 732-572-0030   vercammenlaw@njlaws.com

  The following is included with office use:
Desk space 
Reception room for clients and use as Bona Fide Office
You can copy and use our Complaints, Motions, Form Letters and Pleadings.
 Use our marketing books, marketing CDs, Criminal, Municipal Court and Elder law audiotapes and video library now located in basement
 Use of our computer forms Motions, Complaints, and Form letters 
Ability to use a file cabinet in basement to store your old files 
Lighting/ Utilities
Bathroom Supplies
Landscaping / Snow Removal
Valuable advice
Hot water, municipal water/sewer charge paid

     Other Duties/ Services to Clients
-       Help add our 900+ criminal articles and statutes to our new criminal articles blog [We will teach you how to add articles to Blogs]
-Prepare Police Chief letters
- Whatever else needed to assist clients [ex Motions, ]

About Mentor Program Director: Kenneth Vercammenis an Edison, Middlesex County, NJ trial attorney.    Mr. Vercammen has published 125 articles in national and New Jersey publications on criminal, traffic, DWI, probate, estate planning, and litigation topics. He has been selected to write the book on Criminal Law for the American Bar Association. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.  
   Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association. He is the past chair of the NJ State Bar Association Municipal Court Section and is the Co-Chair of the ABA Criminal Law committee, GP Division. 
          He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. As the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is also a recipient of the NJSBA- YLD Service to the Bar Award.
In his private practice, he has devoted a substantial portion of his professional time to the preparation for trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings. He serves as the Editor of the popular legal websites www.njlaws.com 


Monday, September 16, 2019

landlord could get attorney fee here WATERSIDE PLAZA APTS., LLC, Plaintiff-Appellant, v. EDWARD BRAND

landlord could get attorney fee here
WATERSIDE PLAZA APTS., LLC,

          Plaintiff-Appellant,

v.

EDWARD BRAND and MADELYN
OQUENDO,

     Defendants-Respondents.
_____________________________________

                   Submitted October 1, 2018 – Decided October 11, 2018

                   Before Judges Sabatino and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Special Civil Part, Bergen County, Docket
                   No. LT-6049-17.

                  NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0973-17T2
PER CURIAM In this unopposed appeal, a residential landlord seeks reversal of the trial court's denial of its claim for $150 in counsel fees and court costs from tenants who were delinquent with their rent payments. Because the landlord's right to counsel fees in these circumstances as a component of the overdue "rent" was clearly expressed in the lease, and the amount sought is reasonable, the governing law supports a fee award. Accordingly, we reverse the trial court's denial of fees. The facts pertinent to this appeal are relatively straightforward. Plaintiff Waterside Plaza Apartments, LLC ("the landlord") is the owner of Waterside Village, an apartment complex in Little Ferry. In May 2010, the landlord entered into a written lease with defendants Edward Brand and Madelyn Oquendo ("the tenants"). The lease was renewed annually. As of July 2017, the monthly rent was $1,532.42. The tenants have been repetitively late with their rent payments. The rent ledger shows the tenants have been subject to late fees, bounced check charges, and other costs nearly every month from January 2015 to the time of the present case. This is the eighth time the tenants have been in litigation with the landlord since 2015. A-0973-17T2 2 In August 2017, the landlord filed a summary dispossess complaint in the Special Civil Part, noting defendants had not paid the base rent due for July and August 2017. In addition to the overdue rent, the landlord also sought a $50 late fee for each of these two months, plus $150 in counsel fees, $58 in court costs, and a $20 increase in the security deposit. The next monthly rent was due on September 1, 2017. The complaint notified the tenants they needed to pay a grand total of $3,391.50 if the case was scheduled for trial before September 1, or $4,923.92 if the trial date was after September 1. On August 31, 2017, the landlord's counsel and defendant Brand appeared in the Special Civil Part on the scheduled trial date. Brand represented to the judge he had already paid the July rent. He also was willing to tender the August rent and the late fees prescribed by the lease, but was unwilling to pay the $150 in counsel fees sought by the landlord. The landlord's counsel fee request is based on the following provision in paragraph 21 of the lease: Landlord shall be entitled to damages from Tenant for any breach of the terms of this Lease. Rent and additional rent for the unexpired lease is due and payable upon termination. Damages shall include reasonable attorney's fees and costs incurred by the Landlord in filing a lawsuit against Tenant. When Landlord has sued Tenant for nonpayment of rent, in no event shall the attorney's fees be less than $150.00. A-0973-17T2 3 These charges shall be collectible as additional rent. ALL PAYMENTS AFTER FILING OF A LAWSUIT MUST BE MADE BY CERTIFIED CHECK OR MONEY ORDER. The landlord contends this provision is unambiguous and should be enforced , despite the tenants' tender of the overdue base rent and late charges. The trial court dismissed the summary dispossess case pursuant to N.J.S.A. 2A:18-55, which allows a residential tenant to be protected from eviction if he or she pays the rent arrears due before the entry of final judgment. The judge initially denied the landlord's counsel fee request on procedural grounds, observing that such a fee claim was inappropriate to adjudicate in a summary dispossess action and instead had to be pursued by the landlord in a separate lawsuit in the Small Claims Division of the Special Civil Part. The landlord moved for reconsideration of the denial of the fee claim, submitting to the trial court authority for the recovery of such fees in a summary dispossess action. The trial court again rejected the fee claim. In a written rider in support of its decision, the court reiterated its procedural finding that the landlord could not recover counsel fees in a summary dispossess case and had to file a separate case to obtain the fees. In addition, the court substantively concluded that the fee request is contrary to N.J.S.A. 2A:18-55. The court reasoned that, since a tenant in default in rent can pay the arrears before the A-0973-17T2 4 entry of final judgment, then "[a]fter this occurs, all the proceedings are stopped, and the case is dismissed." Because the base rent arrears were tendered in this case, before the entry of final judgment, the court found the landlord's fee claim invalid. On appeal, the landlord argues the trial court's procedural and substantive rulings are incorrect. Its brief on appeal provides contrary legal authority not discussed by the trial court. Those citations, as well as other authority, compel reversal of the trial court's decision. A key objective of the summary dispossess statute is to provide landlords with a "swift and simple method of obtaining possession" of the premises. Benjoray, Inc. v. Academy House Child Dev. Ctr., 437 N.J. Super. 481, 486 (App. Div. 2014); see also Hous. Auth. of the City of Newark v. West, 69 N.J. 293, 300 (1976). The summary procedure allows landlords to avoid delays that often occur in common law ejectment actions. Hodges v. Sasil Corp., 189 N.J. 210, 221 (2007). Thus, possession of the premises generally is the only available remedy in a summary dispossess action; money damages are not recoverable. Ibid. Despite the narrow scope of summary dispossess cases, our courts have permitted landlords to recover counsel fees and court costs in such proceedings, A-0973-17T2 5 under certain conditions. The Supreme Court has held that reasonable counsel fees and damages may be recovered as rent in a summary dispossess proceeding, but only if they are expressly provided by the written lease. Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 234 (1998). In Community Realty, the lease specified that "monies due the landlord for damages, reasonable attorney fees, and costs connected with the damage claims 'become charges due in addition to rent.'" Id. at 234-35. The Court interpreted this term of the lease as evidence the parties contemplated counsel fees would be considered additional "rent," recoverable by the landlord in a summary dispossess proceeding. Id. at 235. Our court likewise has recognized this principle. In University Court v. Mahasin, 166 N.J. Super. 551, 553 (App. Div. 1979), the tenant failed to pay rent for two months. When she tendered at trial the two months of rent owed, the landlord claimed that she was also required to pay an attorney's fee in order to cure her default. Ibid. We held in Mahasin that, when expressly provided by a written lease, a reasonable attorney's fee incurred by the landlord in bringing a summary dispossess action for nonpayment of rent may "be contracted to be considered additional rent, for the purposes of the summary dispossess act." Id. at 554 (quoting Trenton Hous. Auth. v. Green, 118 N.J. Super. 544, 545 (App. Div. 1972)). See also Mury v. Tublitz, 151 N.J. Super. 39 (App. Div. 1977) A-0973-17T2 6 (enforcing a lease provision requiring a tenant to pay, as additional rent, reasonable attorney's fees and other expenses incurred in a nonpayment suit or dispossess proceeding). The statutory definition of "rent" is "the amount currently payable by the tenant to the landlord pursuant to lease or other agreement . . . [.]" N.J.S.A. 2A:18-61.16a. In the absence of contravening public policy, the parties to a lease are free to define "rent" as they choose. Fargo Realty, Inc. v. Harris, 173 N.J. Super. 262, 266 (App. Div. 1980). The function of a court is to enforce the lease as it is written. We cannot make a different or better contract than the parties entered into themselves. See also Cypress Point Condo Ass'n, Inc. v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016); 22 Raymond I. Korona, New Jersey Practice Series, Landlord and Tenant Law, § 10.1. (5th ed.). The critical question, therefore, is whether the parties' lease has made sufficiently clear that "rent" is defined to include not only overdue monthly lease payments, but also counsel fees and other associated costs incurred by a landlord. See R. 6:3-4(c) (noting that "[t]he amount of rent owed for purposes of the dispossess action can include only the amount that the tenant is required to pay by federal, state or local law and the lease executed by the parties") (emphasis added). If the lease clearly includes counsel fees in the definition of A-0973-17T2 7 rent, then, as the case law we have cited instructs, the court may award such reasonable fees to the landlord. On the other hand, where the lease requires the tenant to pay legal fees and other costs but does not characterize those expenses as "rent" or as "additional rent," the landlord must seek a money judgment in a separate breach of contract suit. See Mahasin, 166 N.J. Super. at 555; Fargo Realty, 173 N.J. Super. at 267; 23A Korona, New Jersey Practice Series, Landlord and Tenant Law, § 43.2. (5th ed.). The trial court erred in failing to recognize that the terms of the lease in this case plainly include counsel fees, which shall not be "less than $150.00," as a component of the rent due from the delinquent tenant. The terms of the lease, as written in this case, meet the standards for the recovery of a fee award. Hence, the arrears amount tendered by the tenants under N.J.S.A. 2A:18-55 to preserve the tenancy needed to include the unpaid counsel fee. The trial court also erred in ruling that the landlord needed to file a separate proceeding in the Small Claims Division to recover counsel fees. As the Supreme Court explicitly instructed in Community Realty, 155 N.J. at 234, the fees may be recovered in a summary dispossess proceeding, provided they are defined as a component of "rent" in the lease. A-0973-17T2 8 Lastly, we underscore that the $150.00 amount of counsel fees sought by the landlord here has not been alleged or shown to be excessive or unreasonable. That is particularly clear in light of these tenants' chronic history of non- payment and late payment, and the landlord's need to bring successive court actions to recover from them the bargained-for rent. Although the record contains no certification of the landlord's attorney's services with hourly billings, the tenants have not filed a brief on appeal arguing the $150 charge is unreasonable. We need not, and do not, address here whether a higher fee would have been reasonable and enforceable. The recovery of court costs is also justified under the terms of the lease. Reversed. The judgment of the trial court shall be modified forthwith to include the unpaid counsel fees and court costs.

Thursday, May 16, 2019

Pro Hac Admission to practice in NJ

Pro Hac Admission to practice in NJ
Rule 1:21-2. Appearances Pro Hac Vice (a) Conditions for Appearance. 
(1) An attorney of any other United States jurisdiction, of good standing there, whether practicing law in such other jurisdiction as an individual or a member or employee of a partnership or an employee of a professional corporation or limited liability entity authorized to practice law in such other jurisdiction, or an attorney admitted in this State, of good standing, may, at the discretion of the court in which any matter is pending, be permitted, pro hac vice, to speak in such matter in the same manner as an attorney of this State who is in compliance with Rule 1:21-1(a)(1). Except for attorneys who are employees of and are representing the United States of America or a sister state, no attorney shall be admitted under this rule without annually complying with Rule 1:20-1(b), Rule 1:28-2, and Rule 1:28B-1(e) during the period of admission. An attorney granted admission pro hac vice in accordance with this rule must include a copy of the order granting such permission when submitting to the New Jersey Lawyers’ Fund for Client Protection the annual fee provided for by Rule 1:20-1 and the other rules referred to herein. An attorney admitted both in this State and any other jurisdiction shall not, however, be permitted to appear pro hac vice if for any reason disqualified from practice in this State. 
(2) A foreign attorney (licensed outside the United States), of good standing there, whether practicing law in such foreign jurisdiction as an individual or a member or employee of a partnership or an employee of a professional corporation or limited liability entity authorized to practice law in such foreign jurisdiction, may, at the discretion of the court in which any matter is pending, be permitted, pro hac vice, to speak in such matter in the same manner as an attorney of this State who is in compliance with Rule 1:21-1(a)(1). 
A foreign attorney may not advise the client on the substantive law of a United States jurisdiction or on procedural issues. New Jersey counsel must accompany the foreign attorney at all proceedings. No foreign attorney shall be admitted under this rule without annually complying with Rule 1:20-1(b), Rule 1:28-2, and Rule 1:28B-1(e) during the period of admission. A foreign attorney granted admission pro hac vice in accordance with this rule must include a copy of the order granting such permission when submitting to the New Jersey Lawyers’ Fund for Client Protection the annual fee provided for by Rule 1:20-1 and the other Rules referred to herein. A foreign attorney admitted both in this State and any other jurisdiction shall not, however, be permitted to appear pro hac vice if for any reason disqualified from practice in this State. 
(b) Application for Admission. An application for admission pro hac vice shall be made on motion to all parties in the matter; which shall contain the following: 
(1) In civil, criminal, and municipal actions, the motion shall be supported by an affidavit or certification of the attorney stating that: 
(A) the attorney is a member in good standing of the bar of the highest court of the state in which the attorney is domiciled or principally practices law or, for foreign attorneys, the attorney is a member in good standing of the bar of the highest court of the jurisdiction in which the attorney is domiciled or principally practices law; 
(B) the attorney is associated in the matter with New Jersey counsel of record qualified to practice pursuant to Rule 1:21-1; 
(C) the client has requested to be represented by said attorney; and 
(D) no disciplinary proceedings are pending against the attorney in any jurisdiction and no discipline has previously been imposed on the attorney in any jurisdiction. If discipline has previously been imposed, the certification shall state the date, jurisdiction, nature of the ethics violation and the penalty imposed. If proceedings are pending, the certification shall specify the jurisdiction, the charges and the likely time of their disposition. An attorney admitted pro hac vice shall have the continuing obligation during the period of such admission promptly to advise the court of a disposition made of pending charges or of the institution of new disciplinary proceedings. 
(E) With regard to foreign attorneys, associated New Jersey counsel must submit a separate affidavit stating that he or she has evaluated the foreign attorney’s credentials and certifies his or her satisfaction with them. 
(2) In criminal and municipal actions a motion so supported shall be granted unless the court finds, for specifically stated reasons, that there are supervening considerations of judicial administration. 
(3) In civil actions the motion shall be granted only if the court finds, from the supporting affidavit, that there is good cause for such admission, which shall include at least one of the following: 
(A) the cause in which the attorney seeks admission involves a complex field of law in which the attorney is a specialist, or 
(B) there has been an attorney-client relationship with the client for an extended period of time, or 
(C) there is a lack of local counsel with adequate expertise in the field involved, or 
(D) the cause presents questions of law involving the law of the outside jurisdiction in which the applicant is licensed, or 
(E) there is need for extensive discovery or other proceedings in the outside jurisdiction in which the applicant is licensed, or 
(F) such other reason similar to those set forth in this subsection as would present good cause for the pro hac vice admission. 
(c) Contents of Order. The order granting admission pro hac vice shall require the attorney to: 
(1) abide by these rules, including all disciplinary rules; 
(2) consent to the appointment of the Clerk of the Supreme Court as agent upon whom service of process may be made for all actions against the attorney or the attorney's firm that may arise out of the attorney's participation in the matter; 
(3) notify the court immediately of any matter affecting the attorney's standing at the bar of any other court; and 
(4) have all pleadings, briefs and other papers filed with the court signed by an attorney of record authorized to practice in this State, who shall be held responsible for them and for the conduct of the cause and of the admitted attorney therein. The order may contain further requirements concerning the participation of New Jersey counsel as the court from time to time deems necessary. 
(d) Appearances in Subsequent Courts. An attorney permitted to speak pro hac vice by order entered by the trial court may speak in the cause on appeal by filing with the clerk of the appellate court a copy of the trial court's order together with a certification stating that all the conditions of the order have been complied with and, to the extent applicable, will continue to be complied with in the appellate court. 
(e) Revocation of Permission to Appear. The court may, on its own or a party's motion, withdraw the permission to appear granted pursuant to this rule for good cause shown. In the event of said revocation, the court shall make such further order respecting the further progress of the litigation as the circumstances may require. 

A reputable NJ attorney has prepared a checklist for out of state attorneys seeking to handle a matter in NJ.

1.          Select trial experienced local counsel.  Why?? A condition of admission is that NO adjournments (or even requests for adjournments) of discovery, motions, trial or any other proceeding are permitted due to out of state counsel not being able to attend. You or your client may be in a position where you need to rely for something important on local counsel so "choose wisely".  
     Ken Vercammen has been handling criminal, civil and Municipal court cases in New Jersey State courts for 30 years. 

2. Obtain a current certificate of good standing from your state bar association. This is required as part of the PRO HAC motion submission.  Some bar associations take weeks to provide this documentation so start the process early and avoid delays.

3. File a motion in Vicinage County Court. The motion must be filed by local counsel pursuant to court rules NJSA 1:21-2(b), as all documents filed with the court must be signed by local counsel. A certification of the attorney to be admitted and an order detailing the terms and continuing requirements of admission must be submitted along with the notice of motion.

4. Submit certification of attorney requesting PRO HAC admission. The certification must confirm that the attorney is in good standing admitted to practice in his/her jurisdiction, accompanied by a certificate of good standing, the office address and contact information in that jurisdiction. It should include confirmation that the client has requested their representation and any other reasons why it is appropriate for them to be admitted (long term relationship, specially area of practice, existing familiarity with the case, etc.), and confirmation that the attorney will pay the NJ Lawyers Fund for Client Protection required by Court Rules NJSA 1:28-2 & 1:20-1(b) along with the other continuing requirements set forth in the order section below.

5. Submit the PRO HAC order with your motion. The order should specify the terms of admission below or it will likely be rejected.
-Abide by NJ Court Rules
-Notify the court of any matter affecting standing at the Bar of any jurisdiction
-PRO HAC cannot be “designated trial counsel”
-all pleadings, briefs and other papers filed with the court signed by an attorney of record authorized to practice in New Jersey
-No discovery, motion, trial or any other proceeding delay shall occur or be requested by reason of the inability to be in attendance
pay the fees required by R. 1:20-1(b) and R. 1:28-2 and submit an affidavit of compliance
-Pro hac vice admission will automatically terminate for failure to make the initial and any annual payment required by R. 1:20-1(b) and R. 1:28-2