Are You A Bad Parent If You Take Your Child To A Pink Concert?

by: Peter J. Gallagher (@pjsgallagher)

This was, literally, the question before a Law Division judge in Zoe v. Zoe. In that case, the parents of an eleven-year-old girl were in the midst of ongoing litigation over physical custody of their child when the mother took her daughter to a Pink concert at the Prudential Center. The father claimed that the mother abused her parental discretion by doing so because the concert was not age appropriate. Specifically, the father claimed that there was profanity in some of Pink’s songs and that the concert included sexually suggestive themes and dance performances. He claimed that if he had been at the concert with his daughter, he would have walked her out rather than let her stay.

The court rejected the father’s claims and held instead that: (1) after divorce, each parent has a right to exercise reasonable parental discretion over a child’s activities; (2) after divorce, each parent has a constitutional right to exercise reasonable parental discretion in introducing and exposing their child to the creative arts; (3) the court will generally not interfere with decisions made by parents that are consistent with these rights; and (4) the decision by the mother in Zoe was a reasonable and appropriate exercise of her rights.

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Appellate Division Holds That Trial Court Had The Right To Decide If Foreclosure-Related Dispute Was Arbitrable, But Decided It Wrong

by: Peter J. Gallagher (@pjsgallagher)

Most of the current litigation over foreclosures has played out in the courts, but a recent decision from the Appellate Division, Banquez v. Deutsche Bank National Trust Company, involved a foreclosure-related dispute that was headed to arbitration. Actually, the decision in Banquez sent the dispute to arbitration after the trial court originally held that it could stay in state court where the plaintiff originally filed it. It is an interesting decision on the enforceability of arbitration agreements, particularly on the issue of whether an arbitrator or a court gets to decide the threshold question of whether a dispute is arbitrable.

In Banquez, plaintiff purchased residential property in Linden and executed a note and mortgage to the lender. At the same time, plaintiff signed a separate arbitration agreement with the lender. The agreement gave either party the “absolute right” to demand that any “Claim” be submitted to arbitration. The agreement defined “Claim” broadly and required that any dispute about whether a Claim was subject to the agreement would be resolved by an arbitrator, not a court. The agreement also contained several “Excluded Claims” that would not be covered by the agreement, including actions “to effect a judicial or quasi-judicial foreclosure.” The agreement was silent as to whether an arbitrator or a court would decide whether a purported Excluded Claim would be governed by the agreement. Finally, the agreement contained a class action waver, which prohibited plaintiff from participating in a class action, absent the lender’s consent, if the lender elected to arbitrate a claim. The agreement provided that the validity and effect of the class action waiver was to be “determined exclusively by a court and not by an arbitrator.”

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Borrower Can Sue Lender To Compel Loan Modification (But Only If It Does What It Promised To Do First)

by: Peter J. Gallagher (@pjsgallagher)

A recent published decision from the Appellate Division — Arias v. Elite Mortgage — resolved a question of first impression in New Jersey that is important as the State continues to dig its way out of the credit crisis. The issue in Arias involved mortgage modifications under the federal Home Affordable Mortgage Program, and specifically modifications that involve Trial Period Plan (“TPP”) agreements. As the name suggests, TPP agreements require borrowers who cannot make their regular monthly payments to make agreed upon reduced monthly payments in a timely manner for a trial period. Essentially, it allows borrowers to demonstrate to lenders that if their monthly payments are reduced then they can make their monthly mortgage payments. Accordingly, if they are able to make these payments during the trial period, then the lender agrees to modify their mortgage.

In Arias, Plaintiffs defaulted on their mortgage and then pursued a loan modification with their lender, which included a TPP agreement. However, the lender eventually refused to modify plaintiffs’ mortgage. Plaintiffs argued that this amounted to a breach of the promises the lender made in the TPP agreement, or alternatively, violated the implied covenant of good faith and fair dealing contained in the TPP agreement. The trial court rejected their claims and the Appellate Division affirmed.

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Supreme Court Issues Important Decision On Truth In Lending Act

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.

If You Ever Wondered What “Accompany” Means, Justice Scalia Has Your Answer

by: Peter J. Gallagher (@pjsgallagher)

The two or three of you Those of you who regularly read this blog or are familiar with some of the posts and articles I have written know that I am a fan of Justice Scalia. Not necessarily his judicial philosophy, but his written opinions – both for the court and in dissent – which are almost always entertaining and compelling even if you disagree with his conclusions. This morning, the Supreme Court released its opinion in Whitfield v. United States, where Justice Scalia, writing for a unanimous court demonstrated again why he is one of the Supreme Court’s most engaging authors.

Whitfield was a tragic case that reads like it was ripped from a law school exam question. Whitfield was fleeing police after a botched robbery when he entered Mary Parnell’s home through an unlocked door. “Once inside, he encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away . . . ). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby.”

Whitfield was found guilty of a number of federal offenses, including one that makes it a crime for a suspect who is “avoiding or attempting to avoid apprehension” to “force[] any person to accompany him without the consent of such person.” Whitfield appealed his conviction, arguing that this statute requires “substantial” movement and his movement with Parnell did not qualify. The Fourth Circuit disagreed and Whitfield appealed to the Supreme Court. In a unanimous opinion written by Justice Scalia, the Supreme Court affirmed the Fourth Circuit’s decision and upheld Whitfield’s conviction.

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