Finestein & Malloy, LLC

Removing a Roadblock to Refinance - - What’s Good for MD Should be Good for NJ

Tue, 04 Jun 2013 10:56:16 -0400

With mortgage rates now at historical lows, and many homeowners still digging out from the financial crisis that struck five years ago, the benefits of refinancing, for these individuals and for the economy as a whole, seem obvious and desirable. According to the Federal Reserve Bank of Philadelphia, however, 23.5% of homes in the country were encumbered by more than one mortgage in 2012. For folks who want to refinance, having that second mortgage (which will typically secure a home equity loan) complicates things.

Buying Commercial Real Estate in New Jersey: A Due Diligence Checklist

Thu, 30 May 2013 12:40:10 -0400

Planning to purchase an office building, warehouse, manufacturing facility, retail store, restaurant or other commercial property? The following checklist suggests the kinds of information you will need and the steps you should take to reach an informed decision and prepare for a successful transaction.

“Just Do It” is Not a Game Plan: Why Your Defense Counsel Needs a Theme as Well as a Theory.

Thu, 30 May 2013 12:36:28 -0400

For the last 25 years Nike’s iconic tagline, “Just do it”, has been a call to action. For the competitive athlete, that means striving to reach the next level; for the rest of us, perhaps, it means stop thinking about working out and start, well, “doing it”.

Insurance Claims, Concurrent Causes: Sandy and Beyond.

Thu, 30 May 2013 12:34:53 -0400

It has now been over six months since Superstorm Sandy ripped through New Jersey. But the state’s businesses and their insurers continue to grapple with coverage issues.

Bank Statements: Who Bears The Risk Of Non-Receipt?

Thu, 30 May 2013 12:30:15 -0400

Section 4-406(c) of the Uniform Commercial Code speaks to the customer’s duty to notify its bank of any items that contain unauthorized signatures or alterations (e.g. forged checks) in a timely way. Similar provisions are contained in the federal Electronic Fund Transfer Act (“EFTA”) and the agreements banks require customers to acknowledge when they open their accounts.

Having Your Cake and Eating it Too? No, Not Where the Insurance Policy is Obtained by Fraud

Tue, 21 May 2013 10:03:41 -0400

From time to time, the argument has been made that allowing insurers to retain premiums where policies have been rescinded might deter attempts to procure insurance policies by fraud. If the risk of engaging in the fraud is heightened, so that the fraudsters face the loss of premiums paid as well as benefits, they may think twice before acting. Those who have advanced this argument must have been heartened by the First Circuit’s recent decision in PHL Variable Insurance Co. v. P. Bowie 2008 Irrevocable Trust, No. 12-2243, 2013 U.S. App. LEXIS 9638, (1st Cir. May 13, 2013). There the U.S. Court of Appeals decided that an insurer was entitled to retain premiums - - as special damages - - in seeking to rescind an insurance policy issued because of fraud.

Bank & Customer: Contract and Statute Trump Tort Principles

Wed, 15 May 2013 13:45:51 -0400

In a case recently decided in the Law Division, F&M obtained summary judgment for its client, a national bank, resulting in the dismissal of claims by a customer for allegedly unauthorized banking transactions that had taken place in her checking account over a two-year period.

New One-Page Summary Requirement for Homeowner's Policies

Mon, 13 May 2013 08:08:21 -0400

Governor Christie has now signed into law a bill that requires insurers to supply a one-page summary of homeowner's policies explaining “notable coverages and exclusions under the policy” that are “written in a simple, clear, understandable, and easily readable way.”

BPO, CMA - - a Rose by Any Other Name?

Tue, 07 May 2013 10:24:25 -0400

One of the more contentious issues in the New Jersey real estate community is one that has pitted licensed appraisers against real estate brokers. It involves the preparation by brokers of “broker price opinions”, also known as BPOs. Under current New Jersey law, a broker, broker-salesperson or salesperson is only permitted to provide what is known as a “comparative market analysis”, or CMA, in the normal course of business, which offers an opinion as to the price of property to a potential seller or buyer. The regulations do not permit a real estate licensee to prepare a CMA for any other party, such as a bank or a mortgage servicer, for any other purpose, such as a loan transaction or portfolio valuation.

Bill would allow private right of action against insurers for violation of New Jersey Insurance Trade Practices Act

Mon, 29 Apr 2013 08:38:43 -0400

New Jersey has a well-earned reputation for being a state friendly to insurance policyholders. When it comes to bad faith claims against carriers, however, New Jersey has historically taken a moderate stance. That stance is illustrated by the Supreme Court’s decision in the 1993 case of Pickett v. Lloyd’s, 131 N.J. 457 (1993). In Pickett, the Court held, in connection with a first-party claim, that if the claim is “fairly debatable” then an action against the insurer for bad faith will not lie. The Pickett court also found that unless the policyholder could prevail on a motion for summary judgment, a bad faith claim cannot succeed. Moreover, where delay is the issue, “bad faith is established by showing that no valid reasons existed to delay processing the claim and the insurance company knew or recklessly disregarded the fact that no valid reasons supported the delay.” (Emphasis added). Id at 481. That may be about to change.

A new law for limited liability companies

Wed, 24 Apr 2013 15:12:30 -0400

The Revised Uniform Limited Liability Company Act (“RULLCA”, N.J.S.A. 42:2C-1 et seq.) became effective March 18, 2013, though for the time being it will apply only to newly created LLCs (i.e. those created on or after the effective date) or those that elect to be subject to the new act. As of March 1, 2014, the RULLCA will apply to all LLCs, regardless of when they were created.

A forged deed is a void deed - - except if it’s ratified

Wed, 03 Apr 2013 10:48:27 -0400

In a case decided by the Appellate Division on April 3, 2013, Estevez v. Mangiliman, Docket No. A-2097-11T3 (not approved for publication), F&M successfully represented a client whose title was under attack because the deed of conveyance had been forged. The Court, while acknowledging that the equities asserted by an innocent purchaser are normally irrelevant when a deed is a nullity, held that such equities are relevant when the otherwise void deed has been ratified.

Proposed bill would restrict enforcement of non-competition agreements

Mon, 01 Apr 2013 09:44:28 -0400

New Jersey’s unemployment rate remains stubbornly high at 9 percent, which is 1.4 percent above the national average. The pain is felt not only by workers, but by the State, which must pay out millions in unemployment benefits at a time when dollars are needed elsewhere.

New law for foreclosure of vacant and abandoned properties

Mon, 01 Apr 2013 09:07:00 -0400

A new law (P.L.2012, Chapter 70, approved December 3, 2012) that authorizes lenders to bring summary actions to foreclose mortgages on “vacant and abandoned” residential property became effective on April 1, 2013.