by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
A wise colleague once told me that obtaining a judgment only gets you about 60% of the way home. Collecting on judgments is a sometimes overlooked, but almost always tedious and expensive process that makes me think my colleague was optimistic with his 60% projection. The Appellate Division's decision in Banc of America Leasing and Capital, LLC v. Flethcer-Thompson Inc., offers just one example of the many nuances of collection work that make it a minefield for the unwary.
In Banc of America, plaintiff obtained a judgment against several defendants in Michigan. It domesticated the judgment in New Jersey and obtained a bank levy against a joint account held by both defendant, Kurt Baur, and his wife, who was not a party to the lawsuit. After the sheriff served the writ and froze the assets in the account, plaintiff filed a turnover motion to have the funds turned over to satisfy a portion of the judgment. Baur and his wife opposed the motion, arguing that the funds in the account were the wife's personal property and derived from her pension, earnings, and tax refunds.
Before the trial court ruled on the motion, the parties entered into a consent order, under which defendants agreed to replace the "levied funds" with "replacement funds" in an equal amount. Once the "replacement funds" were deposited, plaintiff's counsel would release the "levied funds" back to defendants. In addition, defendants agreed to pay plaintiff $25,000 per quarter and $6,000 per month until the judgment was satisfied. Unfortunately, defendants defaulted on their obligations under the consent order, and plaintiff filed a new motion to turnover the "levied funds." Baur and his wife opposed the new motion on the same grounds as they had opposed the original motion. The trial court granted plaintiff's motion. In a three-sentence opinion, the court concluded that there was an agreement reached by the parties to avoid turnover, but defendants breached that agreement, therefore turnover was justified. Defendants appealed.
Continue reading “‘Til Death, Not Bank Levy, Do You Part: Creditor Must Prove Funds In Joint Account Belong To Debtor, Not Wife”
by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
Continuing with a recent theme of people getting injured playing sports and then suing the people who allegedly injured them, we now have Greaves v. Inline Skating Club of America, LLC. In Greaves, plaintiff was the goalie on a soccer team. He was injured during a formal, league-sponsored game with referees (this will be important later on). The Appellate Division described the underlying events as follows:
[Plaintiff] was severely injured while playing soccer as goalie for "Kiss the Baby" team. At the time, plaintiff was in the process of picking up the ball inside the goalie box. He had the ball for approximate[ly] [five] to [ten] seconds when he was tackled/kicked and/or pushed to the ground in a violent manner by . . . a player on the opposing soccer team. Plaintiff struck his head on the hard surface losing brief [sic] consciousness. At the same time and place, the game was being refereed by [the referee] who was working as an agent and/or employee of [defendant].
Plaintiff sued the player who made contact with him, the referee, and the facility that ran the league. Plaintiff never served the player or the referee with the summons and complaint, however, so they were dismissed and the lawsuit proceeded against the facility alone. Plaintiff alleged that the facility was "responsible for maintaining a safe facility and failed to supervise and provide security at the facility." Stated differently, plaintiff alleged that the referee's failure to officiate the game properly caused his injuries.
Plaintiff never produced an expert report during the discovery period. After receiving an adverse decision from an arbitrator during mandatory, pre-trial arbitration, plaintiff moved for trial de novo and served a liability expert report. Defendant objected, forcing plaintiff to move to reopen discovery so that he could amend his discovery responses to identify his expert and serve the expert report. The motion was denied. Defendant then moved for summary judgment, which was also denied because the trial court held there were issues of fact regarding the role of the referee and whether defendant breached any duty it may have had to plaintiff.
Continue reading “We got next! Injured during a pick-up game, no expert needed; injured during a league game, get an expert.”
by: Peter J. Gallagher (@pjsgallagher)
Please check out an article I wrote for law360.com on the U.S. Supreme Court's recent decision in Jesinoski v. Countrywide Home Loans. Here is the opening paragraph:
On Jan. 13, 2015, the U.S. Supreme Court released its opinion in Jesinoski v. Countrywide Home Loans (No. 13-684) and resolved a circuit split on an important issue arising under the Truth in Lending Act, 15 U.S.C. §1601-1677 (“TILA”). Under TILA, a borrower has the right to rescind certain loans for up to three years after the loan is consummated. To exercise this right, borrowers must “notify the creditor” of their intention to rescind the loan within three years. The question in Jesinoski was whether a borrower satisfies this requirement by sending written notice to a lender of its intent to rescind or whether the borrower must file a lawsuit within the three-year statutory period. In recent years, a circuit split had developed over this issue. In Jesinoski, the Supreme Court resolved this split, holding that written notice is sufficient.
Check out the rest of the article here.