by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
Is it defamatory for a book to report that you are the child of a suspected Nazi? This was the question recently addressed by the U.S. Court of Appeals for the Third Circuit in Soobzokov v. Lichtblau, an unpublished decision.
In Soobzokov, plaintiff sued the author and publisher of a book entitled, "The Nazis Next Door: How America Became a Safe Haven for Hitler's Men." In the book, the author argued that plaintiff's father was one of several former Nazis brought to the United States after World War II for "strategic purposes." Among other things, the book described the challenges faced by the children of alleged Nazis, including plaintiff. When writing the book, the author spent nearly seven days with plaintiff and later communicated with him via email and telephone. According to the Third Circuit, plaintiff "makes a handful of appearances in the book — all of which emphasize his unwavering belief in his father's innocence."
After the book was published, plaintiff sued for defamation. His claim took two forms. First, he alleged that three references to him in the book were defamatory: a section that described his belief in his father's innocence as "an obsession;" a section that described his "determination to revive the investigation into his father's brutal murder — which had gone unsolved for nearly 25 years;" and a mention of him in the "Acknowledgements section, which plaintiff claimed could suggest that he assisted in the writing of the book, which could "lend [him] to be considered a traitor to his father before the entire world." Second, plaintiff alleged that these statements, even if they were not defamatory in their own right, were defamatory when combined with the negative comments about his father. The district court rejected both aspects of plaintiff's defamation claim and dismissed the complaint. Plaintiff appealed.
Continue reading “Third Circuit Rejects Claim For “Defamation By Relation””
by: Peter J. Gallagher
Two more Appellate Division panels have refused to allow defendant's in foreclosure lawsuits to raise standing as an eleventh-hour defense. As we previously reported — Changing Tide in Forclosure Litigation? Courts Taking Closer Look When Defendants Assert Lack Of Standing At Last Minute — there is now a clear trend against allowing defendants to stay silent in the face of a foreclosure lawsuit only to appear at the last minute, usually on the eve of a sheriff's sale, and seek to vacate final judgment based on an alleged lack of standing to foreclose. Two recent Appellate Division cases continue to bring this point home.
In IndyMac Bank FSB v. DeCastro, a residential borrower moved to vacate final judgment and dismiss the complaint 15 months after it was entered, arguing that he was not served with the complaint. The motion was denied. Defendant filed a second motion to vacate, arguing, for the first time, that the bank lacked standing to foreclose because it was not assigned the mortgage until after the complaint was filed. This motion was denied as untimely and defendant appealed. In an opinion, dated March 13, 2013, the Appellate Division affirmed. In its decision, among other things, the Appellate Division rejected defendant's standing argument, noting: "[W]e have now made clear that lack of standing is not a meritorious defense to a foreclosure complaint." Moreover, the Appellate Division held that defendant's standing argument was meritless "particularly given defendant's unexcused, years-long delay in asserting that defense or any other claim." In arriving at this decision, the Appellate Division relied on many of the cases discussed in our prior post.
Similarly, in WellsFargo Bank, N.A. v. Lopez, a different Appellate Division panel rejected another residential home owner's last-minute attempt to raise standing as a defense to the foreclosure complaint. The facts in that case were a bit more egregious because the borrower contributed to the four-year delay between the entry of default and the filing of his motion to vacate by filing numerous bankruptcy petitions and seeking a stay to attempt to short sell the property. Nonetheless, the Appellate Division affirmed the trial court's denial of the motion to vacate holding, among other things, that the lack of standing, even if true, was not a meritorious defense to a foreclosure complaint, particularly in the post-judgment context. Again, the Appellate Division relied primarily on the cases included in our prior post.
by: Peter J. Gallagher
In a series of recent decisions, New Jersey courts appear to be taking a stance against defendants raising, as a last-minute defense, that a party lacks standing to foreclose. This is good news for lenders and their assignees, who, prior to these decisions, faced the prospect of proceeding to final judgment of foreclosure, only to have a party appear at the last minute, allege a lack of standing to foreclose, and send the process back to square one.
The changing body of case law began with the Appellate Division’s opinion in Deutsche Bank Trust Company Americas v. Angeles, 428 N.J. Super. 315 (App. Div. 2013). In that case, defendant failed to defend the action or assert a standing issue until two years after default judgment was entered and more than three years after the complaint was filed. Id. at 316. Interestingly, the Appellate Division acknowledged that defendant raised a valid concern about plaintiff’s standing to foreclose, but nonetheless refused to vacate final judgment. In explaining its decision, the Appellate Division noted:
In foreclosure matters, equity must be applied to plaintiffs as well as defendants. Defendant did not raise the issue of standing until he had the advantage of many years of delay. Some delay stemmed from the New Jersey foreclosure system, other delay was afforded him through the equitable powers of the court, and additional delay resulted from plaintiff's attempt to amicably resolve the matter. Defendant at no time denied his responsibility for the debt incurred nor can he reasonably argue that [Plaintiff] is not the party legitimately in possession of the property. Rather, when all hope of further delay expired, after his home was sold and he was evicted, he made a last-ditch effort to relitigate the case. The trial court did not abuse its discretion in determining that defendant was not equitably entitled to vacate the judgment.
Id. at 320.
Continue reading “Changing Tide In Foreclosure Litigation? Courts Taking Closer Look When Defendants Assert Lack Of Standing At Last Minute”