Foreclosure frenzy

Who is responsible for the foreclosures we are constantly reading about in the news these days? Lately the culprits are the "robo-signers", previously it was the Wall Street derivatives market's demand for new products and before the blame was carved into parts it was simply called predatory lending. Is it really the fault of lenders or should Courts and lawmakers also be looking at predatory borrowing? Of course there were self-proclaimed "investors" brainwashed by the likes of Robert Kiyosaki into believing they could become the next real estate moguls by levaraging their funds, or in many cases their homes, only to find that leverage is a 2 way street and if money, from rent or re-sale, is not coming in faster than it goes out levarage spells trouble. When the market bubble burst and people stopped buying real estate at ever inflating prices or could not pay rent then all the Kiyosaki taught "investors" were hard hit. We can call that the cost of doing business for them and they can decide whether to blame Kiyosaki, the banks or themselves.
For individuals there are different stories and reasons for crisis but in most cases it comes down to greed. Sure the banks allowed people to turn their homes into personal ATM machines by writing second and even third mortgages against personal residences of borrowers so they could leverage the ever increasing "value" in their homes. The banks did not actually force anyone to take those mortgages. The banks, whether they failed review all applications, failed to accurately appraise properties or whatever other manner in which they failed to "protect" the borrower from the borrowers own greed did not actually force the borrower to accept the funds but rather enabled the borrower to do as he or she wished. The second class of individual borrowers now suffering are those who purchased as much as a lender would possibly allow based on "house of cards" funding where if a wind blew the structured "deal" would fall apart.
The wind that blew turned out to be a tornado as the market bubble burst but this was as much the borrower's fault as the lender's. The practice of saving was forgotten and people were living for the next indulgence they could impress their friends with. Even immigrants coming to this country and taking jobs as laborers were buying the so called "McMansions" based on wages that could hardly pay for a reasonable home.
Of course there are the unfortunate individuals who practiced sound spending and saving but suffered tragic accidents or illnesses and sadly are now experiencing the same difficulty as the greedy.
Now what of the savers who practiced sound spending who are paying ever increasing taxes and whose children and grandchildren are faced with the largest deficit this country has ever known. Should it be their responsibilty to save the banks who are now forced by the Courts and government to accept responsibility for the greed of consumers and write down these loans at huge losses only to be later "rescued" by the government at the ultimate expense of the frugal who are now the only ones still paying their bills? Or should those who enjoyed the spoils of their greed be made to actually pay for it this time by remaining in their homes and paying modified amounts for longer terms without the benefit of handouts or rescues which are shortly therafter followed by the extension of new credit lines likely be utilized by these individuals who have been taught they can have all the luxuries in life for free?
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Suing the Bar that Served You

Drunken drivers in NJ who were injured in automobile accidents while driving under the influence were long ago prohibited from suing the other driver for any injuries the drunk driver suffered in the crash but the Court is now about to decide whether they may sue the establishment that served them the alcohol. The Court has agreed to hear Voss v. Tranquilino to decide whether the legal provision indicating "a person convicted of, or pleading guilty to, DUI has no cause of action for his or her injuries" means no cause of action against the establishment who served them. The Court will hear arguments relating to the legislative intent of the statute which is presumably enacted to protect innocent parties from liability versus the legislative intent of the dram shop act which holds drinking establishments liable for serving visibly intoxicated individuals. The appellate Court decided that the law does allow suits by the injured drunken driver, as well as suits by victims of the drunken driver. The scope of liability of liquor establishments in NJ is in the balance in this decision.
For more information on NJ DUI or other NJ traffic matters visit HeatherDarlingLawyer.com.

DUI confusion

New ruling in NJ benefits drivers who fluently speak another language. Drivers stopped for DUI in New Jersey have the right to refuse to give a breath sample. Although refusal comes with automatic penalties, the penalties may be less severe than the DUI charge depending upon the circumstances.
The police officer is required to provide notice of the consequences of breath-test (Alcotest) refusal. Recently, a refusal conviction against a motorist in NJ was reversed due to the fact that the officer did not give notice of consequensce in a language understood by the motorist.
The purpose of notice requirements in statutes and regulations is exactly that- notice to the individual. If the individual being provided notice does not understand the notice provided then the legislative intent is defeated.
Of course this brings about problems for the prosecution in proving DUI matters as, while the specific language spoken by the detainee is ascertained and translators are sought and summoned to the site where the alcotest, or even field sobriety tests which are certain to be the next cases litigated as to the language requirement, the blood alcohol content diminshes at a rapid rate.
The individual claiming not to understand English bears the burden of proof so merely claiming not to understand may result in further legal trouble if a trial occurs and police investigation reveals otherwise. However, in the event of a true failure to understand there is an opportunity for the motorist to prevail.
For more information on DUI or other motor vehicle matters in NJ visit HeatherDarlingLawyer.com.

Prosecutorial discretion

In NJ criminal matters the prosecutor has discretion to proceed as the police have charged, downgrade the charges, or dismiss a matter completely. There are numerous reasons that each may occur but I shall only cover the most common here.
Most often, when a prosecutor moves ahead with the original charges and does not waiver as the matter moves toward trial it means the evidence against the accused is substantial and not easily refutable.
In the opposite situation, reasons a prosecutor may decide to dismiss a case are lack of amount or quality of evidence which offer no real link of the accused to the scene of the crime. There may be only one witness who is less than reputable. The attorney for the accused may succeed with a motion to suppress evidence or the prosecutor himself may find the police violated the accused's rights and obtained evidence illegally. There may be a determination that the interests of justice will not be served by prosecution as is often the case when the accused has an addiction and is instead directed to treatment. Finally, the accused may be standing trial in multiple jurisdictions for the same series of events and the prosecutor finds the overlap unnecessary.
In between the aforementioned situations is the situation where the prosecutor reduces the original charges. This may be based on lack of evidence, the fact that the matter was a first offense, contribution of a victim to the escalation of a situation or other fact specific reasons.
Clearly, the accused and his or her counsel may obtain indicia of the strength or weakness of the case against the accused from the prosecutor's treatment of the matter throughout the plea bargaining process.
For more information on criminal matters in NJ visit HeatherDarlingLawyer.com.
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Out of Bounds

Although this Blog is typically dedicated to legal matters, an article recently caught my attention which may bear largely on the global economy and I could not pass up the opportunity to call attention to this experiment.
An experiment in humanity. Knights Apparel company now pays a wage to employees in its Dominican factory which permits them to improve their quality of life in reponse to cries for more humitarian conditions for factory workers in foreign nations. If wearers of the apparel are willing to pay the price it will succeed but at what price to the rest of the world? In the midst of economic crisis, a major oil spill with results yet untold and natural disasters unfolding daily it seems a wonder that something is afoot which has such great possibilities to improve the lives of impoverished workers. It is hard not to wonder why now when thinking of the timing of this experiment. When America has a new class of "poor", the previous "lower middle class" who have lost jobs and are losing homes at previously unseen rates it is difficult to imagine the sustainability of an experiment exporting more American dollars in exchange for labor at higher rates. This monumental experiment will certainly be a true test of the heart of mankind and the choice between self-preservation or the elevation of others to an economic status never before seen in such areas, and eventually perhaps more similar to his or her own.
Not only is it a test of where man's heart is but may be a leading indicator of a new global economic trend which is reaching beyond Japan, China, Mexico and other regular U.S. trading partners who have seen fit to close the gap between the standard of living in the U.S. and their own countries.

Alcotest Under Assault Once Again

In NJ there is a new challenge to the Alcotest awaiting appeal. Evidence shows the Alcotest device, used to determine blood alcohol content for DUI suspects, routinely records breath samples of up to 25 seconds in length being provided yet most people are capable of providing only about a 6-8 second sample. This new information is being used to call into question the reliability of the purportedly self-calibrating machine. In the event the machine is in fact self-calibrating, this faulty sample time calls into question other indicia determined in State v. Chun to be scientifically reliable and therefore admissable as evidence of DUI.
Should the Alcotest be deemed unreliable the multitude of guilty pleas and verdicts for DUI based predominately on the Alcotest results are subject to review.
For more information on DUI or other NJ Municipal Court matters visit HeatherDarlingLawyer.com.

Stop and Frisk. Residents in Brownsville, Brooklyn are routinely subject to a technique used by police known as "stop and frisk" which is permitted for the purpose of deterring crime when police have reason to believe the individuals being stopped and frisked are actively engaged in criminal activity at that moment. In Brownsville residents, who initially welcomed police presence because of a very high rate of serious crime in the area, are being stopped seemingly without reason. People cannot sit on their own front steps, ride bicycles, enter housing projects or other similar routine activities without being stopped, questioned, patted down and having their personal information recorded in a criminal database in spite of the fact that 99% of these people are found to possess no weapons or contraband. Now the very citizens who welcomed police fear them as nearly every resident in Brownsville has been subject to an average of at least 1 police stop per year for the past 4 years.
The question residents and authorities must consider is whether this level of police activity is justified and necessary for the protection of the citizens or whether use of stop and frisk measures has exceeded that required to protect the general public and become violative of the constitutional rights of freedom and privacy of those very citizens it was intended to protect.
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Foreclosure

In the event of foreclosure bankruptcy is an option for a property owner but with the many programs now available rushing to file bankruptcy is not necessarily recommended. Federal legislation now mandates forestalling the foreclosure process in the event the homeowner requests an extension. In addition, banks are not equipped to be property owners or managers, especially of vacant properties which give rise to the likelihood of vandalism and deterioration. In the current market where so many properties, both occupied and unoccupied, remain on the market unsold even at drastically reduced prices lenders are very willing to revise loans so that borrowers, especially homeowners, can retain properties. Of course, there are considerations such as tax implications which may be triggered through processes such as short sales or debt forgiveness by lenders.
In the event of foreclosure there are many options and considerations making it advisable to retain counsel to assist in the resolution of any foreclosure.
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Corporate Principal Liability

There is an incorrect assumption frequently made on the part of corporate principals- that because they are corporate officers acting on behalf of a business they are not subject to liability for the acts of the Corporation. Through the years case law has continued to address what is known as "piercing the corporate veil" in which the actions of the corporate officers and directors may be examined to determine whether they knew or should have known about harmful acts being undertaken by the Corporation. Individuals wishing to protect themselves and their assets from liability for injuries to person or property caused by their businesses are often led to believe that an entity such as a Corporation or Limited Liability Company will fully protect them. It is only later these individuals learn that they were not fully advised. In truth, the more removed the officers and directors of an entity are from the daily corporate operations the more likely it is they will be protected. In a closely held business, such as a single member LLC or family business it is more likely the officers will be imputed with knowledge in the event of a suit for damages against corporate acts.
In the recent New Jersey case of William Allen v. V&A Brothers Inc. a landscaper's work collapsed and the homeowners sought monetary damages, as well as treble damages under the home improvemet regulations. The homeowners were awarded damages against the businesses but the Judge dismissed the case as to the company owners. The homeowners were unable to recover damages from the company due to lack of funds and appealed the dismissal of damages against the company owners. On appeal it was decided that the Consumer Fraud Act did not require the normal piercing of the corporate veil but rather, through the use of the word "person" in N.J.S.A. 56:8 et. seq. the Act itself provided statutory authority to impose penalties directly against the principals of the company.
Corporate entities are under a duty to act fairly and reasonably in undertaking their operations and should they fail to do so the liability may reasonably be placed upon those at the helm of such entities.
For more information on Business Law visit HeatherDarlingLawyer.com or contact Heather J. Darling, Esq.

product liability

Toyota is undergoing yet another recall. Although consumers have a right to safety there is also a need to understand basic automobile functions. When trucks roll over during high speed turns is the consumer under a duty to exercise basic caution and turn at a vehicle appropriate speed? Does basic driver education not teach that when a vehicle is accelerating uncontrolably merely shifting the vehicle to neutral and applying breaks or coasting to a stop will remedy the situation. By failing to exercise due care to protect themselves do consumers have the right to place full onus on the automaker? In todays economy is a company such as Toyota able to withstand recall after recall? It seems that if copanies are to address corporate bonuses then juries should be addressing "consumer bonuses" in the form of rewards for failure to exercise due care.

NJ alimony modification under economic strain

Change of Circumstances on the part of the payor or payee is required for an unscheduled modification of alimony in matrimonial matters. In light of recent economic factors, many spouses find themseleves in a different position financially than they anticipated when negotiating property settlement agreements or when they presented testimony relating to their finances to a judge who established alimony. This has resulted in many payors seeking reduction of alimony to former spouses. This week, the New Jersey Appellate Court reaffirmed that any requests for reduction in alimony must be well supported and that a mere claim of reduced income without adequate factual basis or increased expenses without justification will not satisfy payor's burden of proving changed circumstances necessitating a reduction in alimony.

In Kisberg v. Kisberg, the parties negotiated their settlement and the payor should have been aware of his financial means and accounted for differences between existing conditions and potential changes. The downturn in the economy was not viewed by the court as an adequate explanation, without further proof, that the new circumstances could not have been contemplated at the time the agreement was entered into. A negotiated settlement, if reasonable and fair to both parties, is a wise option. When a party feels they are being economically pressured into arriving at a settlement agreement they are taking a calculated risk and balancing present financial strain against possible future finacial strain.

Whether it is the payor or payee who feels compelled to enter into a settlement agreement they are truly unhappy with, for economic or any other reason, they must bear in mind they will be required to give testimony on the record during the divorce proceeding. The testimony will include, at least, the following: they negotiated the agreement, were not coerced or under duress, reveiwed it, discussed it with their attorney, had adequate opportunity to think about it, had adequate opportunity to ask questions about it, were satisfied with the answers to any questions asked and only after all of those things did they sign it. After making such assertions on the record, it is very difficult to later show that there is an actual change in circumstances that could not be forseen at the time the agreement was entered into.

When entering into a negotiated settlement as to alimony it is always wise that a party either review it thoroughly with counsel and make sure that their attorney is aware of all circumstances, including long-term recurring illness of the payor or payee, work history of both parties, education, earning capacity of parties, and anything else which may come to bear upon the future income of either the payor or payee in the matter.

For more information on New Jersey matrimonial matters or to obtain counsel visit HeatherDarlingLawyer.com.

NJ Drug Court standards

According the the NJ State Judiciary website, the mission of drug courts is "to stop the abuse of alcohol and other drugs and related criminal activity." Drug courts exist within the Criminal Division of the Superoir Courts of New Jersey and are designed to assist non-violent drug users with potential for rehabilitation. In drug court, the judge monitors a participant's recovery inside the courtroom weekly. In the interim the participant is supervised by probation officers, substance evaluators, and drug treatment specialists. Regular and consistent monitoring was selected to reduce the opportunity for relapse and enable swift intervention in the event of relapse.

A standardized assessment process is utilized to identify eligible offenders and an individual applying to the Court for drug court will most likely be admitted or denied based on the substance of this report although the attorney or other advocate for the individual may attend the team meeting and make arguements on behalf of an individual who would otherwise be denied. Clearly the arguments made must be based on sound reasoning indicating that the individual is in fact likely to respond well to treatment. The likelihood that the individual wishing to enter the program will respond well to treatment is the key element of drug court admissibility. Additionational important factors are prior failed attempts within the program, criminal history, and nature of offense committed.

In regard to the nature of the offense committed, it is required that the offense be non-violent in order to balance the interest in the individual in being rehabilitated is not overly burdensome on the community's right to be safe from harm. Recently, the issue of whether an individual involved in burglaries was a viable candidate in light of the non-violent offender provision of drug court.

In many cases, individuals with drug habits will burglarize homes in order to steal money or other items they may sell to support thier drug habits. The issue then comes down to whether this makes the offender violent. Although burglary does give rise to the potential for violence in the event the offender encounters anyone inside the structure, it is also very possible that a burglary will occur without any violent incident. The outcome of this case will clearly have substantial effect on the ability of potential participants to enter drug court in the future and the ability of the NJ Drug Courts to carry out their mission "to stop the abuse of alcohol and other drugs and related criminal activity."

For more information on the NJ Drug Court program visit www.judiciary.state.nj.us/criminal/crdrgct.htm.

For more information on matters relating to criminal law or for legal representation visit HeatherDarlingLawyer.com.

Stalkers Beware

The New Jersey Supreme Court has held that stalking is stalking, and no showing that the Defendant intended to cause fear is required.

The stalking statutue, N.J.S.A. 2C:12-10, was enacted in New Jersey in response to "persistent, distressing or threatening behavior generally perceived as more serious than harassment, at least in its persostence, but not yet ripened into terroristic threats or assualt." Title 2C NJ Criminal Code Ann. (2007)

N.J.S.A. 2C:12-10(b) reads:
A person is guilty of stalking, a crime in the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of immediate family or death to himself or a member of his immediate family.

The statute includes a "course of conduct" meaning repeated incidents. Repeated is defined as two or more occasions.
Originally the statute included only visual or physical proximity but was later expanded to include "communication" in order to encompass the internet, and other electronic media and devices.
The statute includes not only the observation of the individual but also their "immediate family" which includes any person who regularly resides in their household.

Based upon the terms of the statute then, an example of a violation of N.J.S.A. 2C:12-10 would occur in the event that an individual used a social networking site, such as Facebook, to "observe", by way of information included on such site published or approved by the person being observed in the event that such observation may arouse fear in the individual observed.

The New Jersey Court in State v. Gandhi, held that the statute requires only a showing that the defendant acted in a way that would cause a reasonable person to fear harm or death, and no showing was is required that the defendant intended, or was aware of, the effect of that conduct on the individual observed.

The use of social networking sites greatly expands ones exposure to would be violators of this statute. In the event that an individual is informed by another to cease contact on a social networking site, deleted by another on such a site, twitter, or the like, the individual advised to cease the actions complained of should do som immediately in order to avoid exposure to N.J.S.A. 2C:12-10 and similar statutes.

For more information relating to matters of criminal law please visit HeatherDarlingLawyer.com

More on Miranda

As a follow up to my prior post regarding Miranda warnings in criminal matters, I am including further information. It appears that the floodgates have opened on Miranda warnings and modifications of this long-standing ruling will continue. This week the U.S. Supreme Court ruled confessions should be admitted at trial in spite of custodial interrogations having been undertaken prior to the required notification of Miranda warnings. Bearing in mind I am not an expert in Florida law, I am aware that Florida's Miranda warning contains alternative wording that deviates from the established standards. In spite of the fact that Florida's alternative wording does not explicitly state that the suspect has a right to have counsel present during questioning, the Court, in Florida v. Powell, held that Florida's alternative wording of the Miranda warning is acceptable. In Maryland v. Shatzer, also heard this week, the Court ruled that police may initiate further interrogation of a suspect who has previously invoked their right to remain silent or have counsel present. The next Miranda case on the docket is Berghius v. Tompkins. Scheduled for argument March 1, 2010, Berghius v. Thompkins will address the issue of whether police can try to persuade a suspect, without coercion, to answer questions after the Miranda warning is given but before the suspect has invoked or waived the right.
For more information on criminal matters visit HeatherDarlingLawyer.com

Miranda Warnings

Miranda v. Arizona, 384 US 436 (1966), was a landmark case argued before the United States Supreme Court February 28–March 1, 1966 and decided June 13, 1966. The Court held that statements made in response to interrogation of an accused in police custody will be admissible only if the prosecution can show that the defendant was informed of the right to consult with an attorney and advised of the right against self-incrimination before questioning by police began, and that the defendant not only understood these rights, but knowingly and voluntarily waived them.
Courts today are still deciding cases relating to the issue of Miranda warnings. In New Jersey this week the Court heard arguments relating to the legality and admissibility of pre-Miranda questioning. In the specific case argued, State v. Yohnnson, the issue was a confession made post-Miranda warnings but Miranda warnings were not issued before questioning began. The Court held that the totality of the circumstances must be viewed in determining whether the Defendant's rights were undermined. The Court ultimately held that the Defendant konwingly and voluntarily waived his rights before confessing, even though he was questioned for three hours before the warnings were given.
Finding oneself in a custodial situation under pressure to confess is designed to elicit the information sought, whether true or not. For more information on your rights or to obtain counsel to assist you if your rights have been violated visit HeatherDarlingLawyer.com.

Divorce and the present economy

Due to the rapid flucutations in stock market and housing prices over the recent years, the valuation of property for the purposes of equitable distribution in matrimonial actions has become somewhat more difficult. The value used to be determined as of the date the complaint for divorce was filed. That does still hold true. However, the speed with which fluctuations in the markets have occurred make it likely that the value of real estate and securities will change substantially between the time the complaint is filed and the items are in fact sold. In light of this situtation, recently in Rendine v. Rendine, the New Jersey Appellate Division determined that the values used in negotiation of a property settlement agreement were to be upheld rather than the values existing at the time of sale, when a party waitied a substantial time to sell the marital residence and a significant decrease in value was the result. Once an agreement is reached between the parties which is the best possible resolution for each at the time, both parties should carry out the terms of that agreement quickly in order not to be damaged by market fluctuations.

For assistance with a Divorce or for further information on Divorce visit HeatherDarlingLawyer.com.

Final Restraining Orders ready for removal?

As a follow-up to my post of Decebmer 28, 2009 regarding restraining orders, I am including this additional information. This past Wednesday, the New Jersey Supreme Court reviewed the case of Crespo v. Crespo in relation to violations of the 14th Amendment. As provided in my earlier post, often times an unrepresented Defendant unrepresented by counsel, and unaware of his rights or the burdens of the prosecution, will be found guilty of a violation of the Prevention of Domestic Violence Act under a mere preponderance of the evidence standard rather than the beyond a reasonable doubt standard required in situations bearing such lofty consequences. Crespo and future cases of a similar nature, which are most certain to follow, may be cause for revisiting existing restraining orders in order to have them removed for lack of adequate proofs in the initial proceeding which caused them to be set in place.

For more information on final restraining orders in New Jersey or to discuss having an existing restraining order removed visit www.HeatherDaringLawyer.com