New Jersey Court Answers The Burning Question: Can I Sue The Owner Of An Abandoned Church If I Slip And Fall On The Sidewalk Outside The Church?

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Slip and fall (pd)
The facts and legal issues in sidewalk slip and fall cases sometimes read like they are pulled from law school final exams. In New Jersey, the baseline legal rule is clear — owners of commercial properties generally have a duty to maintain, in reasonably good condition, the sidewalks abutting their property, while owners of residential properties do not. But does a property owner have a duty to maintain its sidewalks when:

  • the property is both residential and commercial, like a multi-family home where one unit is owner occupied and the others are rented (click here for more on that, but the short answer is that it depends on whether the property is primarily residential or primarily commercial ); or
  • the plaintiff is a tenant and sues the landlord after slipping on a sidewalk outside the rental property (click here for more on that, but usually, yes); or
  • the property is a commercial property, final judgment of foreclosure has been entered in favor of the lender, but no sheriff's sale has been scheduled (click here for more on that, but if the lender can be considered a mortgagee in possession, then yes); or 
  • the property is owned by a condominium or common-interest community (click here for more, but generally, yes if it's a private sidewalk within the condominium, no if it's a public sidewalk abutting the condominium); or
  • the property is residential and the fall is caused by sweetgum spikey seed pods that fell from a tree on the defendant's property (click here, but, no).

And now one more can be added to the list thanks to the Appellate Division's decision is Ellis v. Hilton United Methodist Church, where the question presented was whether "sidewalk liability applies to an owner of a vacant church."

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Borrower Cannot Abandon Germane Defense To Foreclosure And Later Sue For Damages Based On That Defense

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Foreclosure (PD)
It is always helpful when a court lets you know up front what its decision is all about. This was the case in Adelman v. BSI Financial Services, Inc., where the Appellate Division began its decision as follows: "A defendant in a foreclosure case may not fail to diligently pursue a germane defense and then pursue a civil case against the lender alleging fraud by foreclosure." Definitely not burying the lede (or is it burying the "lead"?).

In Adelman, plaintiff was the executrix of the estate of her deceased husband, Norman. Before they were married, Norman entered into a loan with his lender that was secured by a mortgage on his home. Three years later, the loan went into default, and six months after that, the lender filed a foreclosure complaint. Norman offered no defense to the complaint, and default was entered. Three months after that, he began discussing the possibility of a loan modification with the lender. However, Norman's chances for a successful modification ended when he could not make the first payment under the proposed modification and when a title search revealed five other liens on the property. 

Months later, final judgment of foreclosure was entered. Norman did not object to the entry of final judgment. One year after that, the property was sold at sheriff's sale, and nine months after the sale, the lender filed a motion to remove Norman from the property. Only then, for the first time, did Norman argue, in a motion to stay his removal from the property, that the foreclosure was improper because the loan modification cured the default. The court denied this motion. Plaintiff appealed but then withdrew the appeal. Ultimately, shortly after Norman passed, and more than five years after the loan went into default, plaintiff vacated the property. 

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Exception To The Rule: Ambulance Service Providers Are “Learned Professionals” And Not Subject To New Jersey’s Consumer Fraud Act

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Ambulance (pd)New Jersey's Consumer Fraud Act ("CFA") is generally recognized as one of the strongest consumer protection laws in the country. It prohibits "any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation" that leads to an "ascertainable loss." But, certain "learned professionals" — doctors, lawyers, hospitals, etc. — are insulated from liability under the CFA. In Atlantic Ambulance Corporation v. Cullum, the Appellate Division added ambulance service providers to the list of "learned professionals" who are not subject to the CFA. 

In Atlantic Ambulance, defendants received services from plaintiff, an ambulance service provider. After they failed to pay the bills for those services, plaintiff sued. In response, defendants filed a counterclaim alleging that they were overbilled by plaintiff in violation of the CFA. Defendants sought to bring their counterclaim as a class action on behalf of themselves and all other similarly situated people who were allegedly overcharged during a six-year period.

After five years of discovery, defendants moved for class certification. The trial court denied the motion for a number of reasons, only one of which is relevant for this post. Plaintiff argued that defendants could not maintain a cause of action under the CFA because they did not pay their bills, therefore they had not suffered any "ascertainable loss." The trial court agreed, expressly rejecting defendants' argument that an excessive bill from plaintiff, by itself, was enough to prove an ascertainable loss. Defendants appealed. 

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(I Swear This Is Not A Boring Post About) Foreclosures And Statutes Of Limitations

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Mortgage (pd)Although foreclosures have not been in the news as much lately as they were several months ago, New Jersey courts still issue at least one or two decisions per week involving residential foreclosures. While I have written about some of the more interesting ones in the past (here, here, and here), most now follow a familiar pattern – final judgment is entered against a borrower, the borrower moves to vacate the judgment arguing that the lender lacks standing, and (almost always) the court finds that the lender had standing and denies the motion. Every now and again, however, a court addresses an interesting issue worth writing about. The Law Division's decision in Deutsche Bank National Trust Company v. Hochmeyer is one of these cases.

In Hochmeyer, defendant entered into a mortgage with a maturity date of June 1, 2036 that was recorded on October 25, 2007. Defendant defaulted on December 1, 2006. Remember these dates. They will be important later on.

Under New Jersey law, a lawsuit to foreclose on a residential mortgage must be brought before the later of (1) six years from the date when the last payment is made or "the maturity date set forth in the mortgage," OR (2) thirty six years from the date the mortgage was recorded, OR (3) twenty years from the date of default. In other words, every foreclosure lawsuit has three potential end dates for the statute of limitations, but only the earliest one counts. 

In Hochmeyer, the parties agreed that calculating the limitations period using the second or third options would yield dates many years in the future — thirty six years from the date the mortgage was recorded would be October 25, 2043, and twenty years from the date of default would be December 1, 2026. They disagreed, however, over the calculation under the first option. The difference was important because, under defendant's approach, the date not only would have been the earliest one, and thus the operative one, but it would have expired before the complaint was filed rendering the complaint untimely. Plaintiff obviously disagreed with defendant's approach. For the reasons set forth below, the court sided with plaintiff.

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Homeowner not liable for sweetgum spiky seed pod slip and fall

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Sweetgum treeIn the past, I have written about whether property owners can be liable for slip-and-fall accidents caused by ice and snow on their sidewalks. (Click here, here, and here for examples.) This is the first time I will address the related topic of whether property owners can be liable for accidents caused by "spiky seed pods" that fall from sweetgum trees on their property. Turns out that the source of the slippery sidewalk does not change the law too much for residential property owners.

In Neilson v. Dunn, plaintiff was injured when she slipped on spiky seed pods that fell from a sweetgum tree on defendant's property onto an adjacent sidewalk. The tree had been on defendant's property since she and her husband bought it, and plaintiff knew that there were seed pods on the sidewalk when she began her walk. Defendant also "employ[ed] a lawn maintenance contractor whose services include fall and spring clean ups." The most recent clean up occurred two month's prior to plaintiff's accident.

After plaintiff sued, defendant moved for summary judgment, arguing that she could not be liable for plaintiff's injuries because she had neither created nor exacerbated a dangerous condition on the sidewalk. She argued that the "seed pod accumulation" was a natural condition over which she had no control, and that she acted reasonably in retaining a lawn maintenance service to "periodically clean up any debris, [including the seed pods,] on her lawn and sidewalk." Plaintiff countered that defendant had a duty to ensure that her property was spiky seed pod free and that her failure to do so created a hazardous condition.

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Appellate Division Questions The “Liberal Policy In Favor of Arbitration”

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Contract(pd)
I have written a few times recently about the enforceability of arbitration agreements. Although usually (always?) a dry topic, it has become somewhat “hot” recently in New Jersey. The Appellate Division’s published decision in Kleine v. Emeritus at Emerson is the most recent example.

In Kleine, plaintiff filed a personal injury claim against the nursing facility in which she was living. The nursing home moved to dismiss or stay the case in favor of arbitration pursuant to an arbitration provision in her admission agreement. The trial court granted the motion and plaintiff appealed. The Appellate Division reversed, and in doing so, took a number of shots at the “liberal policy favoring arbitration,” which was developed in the lower federal courts and the U.S. Supreme Court, and which applies even in the face of contrary state law.

 

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