A recent case from the Appellate Division reminds us that the court rules which address business litigation must be closely followed. A Trial Judge decision was reversed because he did not require the plaintiff to give notice of a proposed custodial receiver to the corporation, stockholder, and creditors of the corporation. New Jersey Court Rule 4:53-1 reads as follows: No order appointing a custodial receiver under the general Equity power of the court shall be granted without the consent of or notice to the adverse party, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that the immediate and irreparable damage will result to the applicant before notice can be served and a hearing …
Creditors of an Estate Can Sue Beneficiaries and the Executor if the Debt is Not Paid
A creditor of a deceased person is allowed to file a claim against an estate if his/her claim is timely filed with the surrogate’s office before an order barring creditors is made. But what happens if they fail to do this? Well, an option is for that creditor to chase any and all assets distributed to the beneficiaries by the estate representative. Our Chancery court has the jurisdiction to order the executor to produce a refunding bond from the beneficiary and if they fail to do so the creditor can sue both the beneficiary and the executor for the value of their unpaid claim. The law is as follows on the proper closing of an estate and payment to creditors. …
Thank you for your help
I thank you for all of your help with our Estate planning and Medicaid needs over the past several years. All of your advice helped us out immensely and made the whole process easier than expected. I will be sure to call on you again if any future needs arise as well as refer family and friends to you if they are in need of legal help. Thank you again, Laura W.
Oh No, I’m Getting Money; Now What Do I Do?
I get quite a few calls from attorneys who have settled cases or obtained judgments in favor of their clients to compensate them for pain and suffering resulting from slip and falls, car accidents, medical malpractice etc. The amount recovered might be small, say $10,000.00. In other cases, it can be substantial, say $1,000,000.00 or more. In each case the attorneys have brought the matter to a successful conclusion, no doubt getting the very best result they can for their client. So, why are they reaching out to me? The reason is that in many cases their clients are receiving “needs based” government benefits; an example, Medicaid. Receipt of settlement money will in each case cause their client to lose …
Short-Term Care Insurance: An Alternative to the Long-Term Care Variety
Truth be told, I really had never heard about short term care insurance. I’m a really big advocate for long term care insurance though many clients choose not to purchase it. Generally the reasons offered are price and/or insurability. So an alternate solution for some people who may need care in the future but are unable to buy long-term care insurance is short-term care insurance that will cover nursing home and/or home care for one year or less. These policies are more popular because long-term care premiums are expensive. This type of insurance is generally cheaper because it covers less time. Purchasers can choose the length of coverage they want, up to one year. The underwriting and medical qualifications are …
If You Don’t Pay Your Arbitration Fees, You Forfeit the Right to Arbitrate Your Dispute, Court Rules
If your contract requires mandatory arbitration and you fail to pay the arbitration fee in advance, you automatically waive your right to enforce an arbitration clause, the New Jersey Supreme Court said in a recently published case. The court rules that the failure to abide by contractual language mandating the advancement of arbitration fees amounts to a “material Breach” of the contract, and therefore invalidates the arbitration clause and will result in the dismissal of an arbitration claim. The failure to advance fees ‘goes to the essence’ of the dispute resolution agreement and amounts to a material breach. New Jersey courts had never before ruled whether a failure to advance arbitration fees amounted to a material breach of a dispute …
Guardianship and Your Right to Vote
A colleague who knows of my extensive guardianship law background asked if he was correct in his thinking that a person declared to be incapacitated continues to retain the right to vote unless that right is specifically taken away in the judgment of guardianship. He is correct. Under NJ law, an incapacitated person retains the right to vote unless the guardianship judgment states otherwise. However, that is not the law in about 10 States so if there’s a possibility that the person may not stay in New Jersey it may make sense to have the judgment specifically state that the person retains the right to vote wherever he/she resides. To explain the New Jersey Constitution states that “no person who …
If Your Business Charter is Revoked in New Jersey, You Can’t Bring Legal Action
The judge concluded correctly that E&V’s failure to reinstate its revoked corporate charter precluded E&V from filing this action. Background E&V, a construction contractor filed a complaint against Deeper Life Bible Church (Bible Church), and several individual defendants. E&V alleged it contracted with Bible Church to build a Church building, that it performed the work, but Bible Church failed to pay the balance due. E&V sought final payment from Bible Church and the individual defendants. Several years ago, E&V lost its corporate charter in NJ for failing to file tax returns and quarterly withholding reports. Now being formally unauthorized to do business in NJ with a revoked certificate of incorporation, E&V improperly entered into the construction contract to build the …
New Jersey Tax Laws Strike Again: New Jersey Just Added Another Tax – This Time It’s a Tax on Short-Term Rentals
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Real Estate Law Firm If you engage in any “transient rentals” (defined as rentals of 90 days or less), you must collect sales and occupancy taxes as of October 1, 2018. There are, however, some exclusions. If you rent your property through a licensed realtor, sales and occupancy taxes do not apply. For this exception from sales/occupancy taxes to apply, the renter must pick up the keys from the realtor, and no in-stay maid services can be provided. If you rent your property on an online marketplace which charges the renter directly (such as AirBnb), then the marketplace itself must collect the sales and …
When You Sign a Business Contract You Absolutely Must Negotiate Litigation Provisions Outside of New Jersey
By Fredrick P. Niemann of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Business Corporation and Contract Law Attorney I have written extensively about the importance of selecting New Jersey as the jurisdiction to decide cases and controversies involving your contracts and relationships with customers/vendors. Many contracts with (particularly) interstate and international companies generally designate a particular state as the place where all lawsuits and legal disputes must be filed and the law of that state applied. Much like mandatory arbitration clauses, State and Federal Courts are increasingly enforcing these mandatory jurisdiction and venue provisions as one way to reduce their case load. A recent case decided in California involved a New Jersey church and school where …