CONSTRUCTION & REAL ESTATE BLOG
If someone wants to foreclose on property, should they be required to prove that they are the holder of the mortgage, i.e. the mortgagee? That question has plagued New Jersey for a number of years. It has resulted in many court battles, including 46 orders to show cause since April of 2012 that were filed for the purpose of correcting foreclosures that had been filed with erroneous documentation.
A proposed statute (which has not yet reached the Governor’s desk) would seek to correct some of these problems. Most notably, it would require that a mortgagee who was foreclosing produce documentation proving that it was the holder of the original note. Under that proposed law (S-1346) there would be an enhanced standard for proving that the mortgagee was the owner of the note. Further, mortgage servicers would need to provide contact information, and if they did not, any payments that went to the wrong person or entity would nevertheless be deemed valid.
The bill was voted out of the Senate Community and Urban Affairs Committee on May 19, 2014.
© 2014 Nissenbaum Law Group, LLC
How do you sell something you don’t know if you own? That may sound like a nonsensical question, but there are many situations in which it comes up under the law.
The typical example is with respect to real estate. Many times the real estate records do not tell the whole story about who has an interest in the property. Sometimes there is a dispute about ownership. Other times people may have proprietary rights that are not necessarily related to actual ownership of the land, but instead may relate to how it is used (or restrictions on that use).
The law has come up with a way of dealing with such situations. It is called a quit claim conveyance. It means that the person will convey whatever interest they may have, whether or not they can define it.
One of the more interesting ways this is currently used has to do with the assignment of intellectual property. Often someone might be involved in a group project that results in creating a trademark, copyright or other such property rights. In such a situation the parties will often create a company that they jointly own and have everyone sign a quit claim transfer assigning any rights they may have, known or unknown, to that company.
A quit claim conveyance or transfer is a powerful tool for those involved in legal situations that may involve a level of obscurity or ill-defined rights.
May an architect who draws up plans at the request of someone considering a land purchase recover the reasonable value of the services, if there is no written contract. That was the issue before the Court in Israel Design Group v. Chabad of the Shore, Superior Court of New Jersey, Appellate Division, Docket No. A-6008-11T3 (July 9, 2013).
In that case, the plaintiff was an architectural firm which developed plans for a synagogue. The synagogue had requested the plans because it was considering purchasing property for expansion. There was no contract; nevertheless, the parties did not dispute that the plaintiff had provided the plans.
The Court determined that, even though there was no written contract, the plaintiff would be permitted to recover under the doctrine of quasi-contract. “Quasi-contractual liability ‘rests on the equitable principle that a person should not be able to enrich himself unjustly at the expense of another.’” Wichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992).
While this common law theory is not something that serves as a substitute for a contract, it is a useful tool for those asserting a damage claim in the absence of a written agreement.
© 2014 Nissenbaum Law Group, LLC
Can a Tenant Pay Rent in Advance and Then Stop Payment on the Check if He Decides to Terminate the Lease?
Will the Economic Loss Doctrine Bar a NJ Negligence Claim if That Would Result in the Plaintiff Having No Remedy at All?
“Economic loss can take the form of either direct or consequential damages.” Spring Motors Distribs. v. Ford Motor Co., 98 N.J. 555, 566 (1985). “A direct economic loss includes the loss of the benefit of the bargain, i.e., the difference between the value of the product as represented and its value in its defective condition.” Ibid. (emphasis omitted). “Consequential economic loss includes such indirect losses as lost profits.” Ibid.As the Third Circuit has aptly noted, “[u]nder New Jersey [*19] law, the economic loss doctrine defines the boundary between the overlapping theories of tort law and contract law by barring the recovery of purely economic loss in tort.” Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238, 244 (3d Cir. 2010) (internal quotation and formatting marks omitted). “The purpose of the rule is to strike an equitable balance between countervailing public policies that exist in tort and contracts law.” Ibid. (internal quotation and formatting marks omitted). Our Supreme Court has observed that “the purpose of a tort duty of care is to protect society’s interest in freedom from harm, i.e., the duty arises from policy considerations formed without reference to any agreement between the parties” whereas “[a] contractual duty, by comparison, arises from society’s interest in the performance of promises.” Spring Motors, supra, 98N.J. at 579.
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