CONDOMINIUM FORECLOSURE

Transcription

1 CONDOMINIUM FORECLOSURE David J. Byrne, Esq. Ansell Grimm & Aaron, PC (Princeton) Kathryn Gilberston Shabel, Esq. Assistance Chief of the Office of Foreclosure (Trenton) IWRPP00516

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8 CONDOMINIUM FORECLOSURES The How To s

9 Documents Needed to Begin What and Who Should be Included in your complaint Foreclosure Unit s Service Requirements Estate/dead owner as defendant How to earn right to serve by publication Motions You May Need to File Final Judgment requirements of the Office of Foreclosure Common Filing Errors how/where to file E-file Paper filer CIS

10 Documents Needed to Begin Condominium Act NJSA 46:8 Recorded lien(s) The type/content of lien sufficient to be foreclosed upon (not lien with just total due ) Lien should include a breakdown assessments late fees/interest attorneys fees Must be identified separately in the lien claim Client accounting to make sure monies are still due Contents of Foreclosure complaint Unit with Equity Unit without Equity Identify purpose of foreclosure Will you go to Sheriff Sale Will you attempt to obtain possession

11 OF Complaint-Related Requirements Identification of each detail of relevant lien Other encumbrances Fair Foreclosure Act Possession Complaint count Contents of possession count

12 Possible Motions Default Include copies of Proofs of Service and any Certifications of Diligent Inquiry Correct Metadata/ACMS E-filer may have input the data incorrectly Correct Defendant Name Attorneys Fees Court/Judge Treatment In General Flat Fees Hourly-Based Fees Notice to Defendant(s) Contested Actions vs. Non Contested Actions Must be made prior to final judgment application

13 Possible Motions (cont.) New Lien amounts Motions for Additional Sums Must include Certification of Client with a break down Receivership Possession Handling/Treatment by Foreclosure Unit Role of vicinage judge Amended Judgments R. 4:49-2 within 20 days of service of final judgment order notice to the vicinage judge

14 Foreclosure Unit Motion Requirements $50 Motion Fee Office of Foreclosure Motions Submit to Motions OF Queue Required R. 4:64-9(c) language Notice to party affected by motion, and any answering/appearing party Miscellaneous Proof of service Notice of motion Proposed order Supporting certifications & any necessary exhibits Motions before a Vicinage Judge Submit to motion queue

15 Final Judgment Timing Less than 6 months from default More than 6 months from default Service on defendant(s) to last known address Include Certification of Amount Due

16 Final Judgment (cont.) Items Required Notice of motion (if applicable) Proof of service Certification of non-military Service all defendants Certification of search fees & costs Applicable portions of the master deed &/or bylaws Certification of amount due executed by plaintiff attorneys fees in lien omitted late fees, interest, fines & special assessments accelerated assessments membership fees/capital contributions Order awarding attorneys fees (if any) Recorded liens Final judgment form Writ of execution form

17 Application Deficiencies OF final judgment review Deficiency notice 20 days to correct or denial Consequences of denial Common Deficiencies Faulty requests for possession Improperly pled defendants Deceased owner Incorrect handling Correct handling Improper naming of Division of Taxation Improper addition of attorneys fees/costs Improper inclusion of attorneys fees/costs Amounts sought in excess of lien claim amount

18 Sheriff s Sales Notice Sale announcement Association purchase 3 rd party purchase Surplus Funds Buyer s remorse

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20 David J. Byrne David Byrne is a partner in the Firm s Community Association Practice Group. He limits his practice to the representation of condominiums, community associations, cooperatives and homeowners associations. Mr. Byrne provides homeowners associations, condominiums and cooperatives with a full range of legal advice and services including the drafting and negotiation of service contracts, rules and regulations and alternative dispute regulations ( ADR ), collections, delinquent assessments and common charges, transition negotiations with developers and/or sponsors, construction defect litigation, municipal services and relations, fair housing compliance, restrictive covenant enforcement and interpretation, any necessary litigation-related services, governance, and the fiduciary duties of board members. Princeton, NJ Main: Direct: Fax: djb@ansellgrimm.com Area of Practice Community Association Law Education Rutgers College, B.A., 1991 Rutgers School of Law, J.D., 1994 Admissions New Jersey Bar, 1994 Pennsylvania Bar, 1997 New York Bar, 2010 Representative matters include: Dismissal of the complaint of several condominium owners in the United States District Court, District of New Jersey, regarding the United States Fair Housing Act, parking issues and allegations of retaliation, a decision reported at 173 F. Supp 2nd 244 (D.N.J. 2001). Appellate Division s reversal of a trial court s refusal to apply the Municipal Services Act ( Kelly Bill ) to a community association in development, a decision reported at 330 N.J. Super. 345 (App. Div. 2000). Landmark New Jersey Appellate Court decision upholding parkingrelated rules on public roads in a private community and protecting that board from a defamation suit, a decision reported as Verna v. Links at Valleybrook Neighborhood Association, Inc. at 371 N.J. Super 77 (App. Div. 2004). Successfully argued that a condominium need not provide alternative dispute regulations (ADR) prior to instituting an action for injunctive relief, in a reported decision, Finderne Heights Condo. Association, Inc. v. Rabinowitz, 390 N.J. Super. 154 (App. Div. 2007). Lead counsel to Leisure Village, successfully establishing, in 2012, that New Jersey s Municipal Services Act does not bar the claims of qualified private communities made more than one (1) year after the community s costs had been incurred, in a case entitled Leisure Village Association v. Township of Lakewood (L ). Ocean, NJ Woodland Park, NJ Princeton, NJ Newtown, Pa. White Plains, NY

21 Mr. Byrne is a member of the Advisory Committee of the Community Association Manager, a publication serving the needs of the country s community association managers Prevailed in a plenary hearing proving that all of the community s roads are roads, and eligible for reimbursements and/or services, for the purposes of New Jersey Municipal Services Act. Argued a groundbreaking appeal in Woodlake at Kings Grant Condominium v. Mesey, resulting in an appellate court opinion that recognized that a court is empowered to grant a condominium s application to place a unit into rent receivership, in the context of that condominium s lien foreclosure. Successfully appeared before New Jersey s Appellate Division, arguing in favor of a community association s right to tow vehicles, enforce restrictive covenants, protect owners privacy and the collection of assessments and attorneys fees. Mr. Byrne has also defended several associations via jury trials against fiduciary duty suits and testified before the 2003 New Jersey State Committee on Investigations inquiring into home construction and inspection abuses. He frequently lectures for the New Jersey Chapter of the Community Associations Institute (CAI), the Cooperator, the South Jersey Condominium Managers Association, the Institute of Real Estate Managers, the New York/New Jersey Cooperator Annual Conference, NYARM, the Pennsylvania and Delaware Valley Chapter of CAI, and the Hudson Valley Chapter of CAI. Mr. Byrne is currently serving as the Vice President of the Board of Directors of the Big Apple Chapter of CAI. He has lectured extensively on a variety of topics, including the recovery and management of assessments and/or common charges, a developer s obligations pursuant to New Jersey s Planned Real Estate Development Full Disclosure Act, alternative dispute resolution, mediation, transition, going green and communities, predatory towing, insurance, contract law, construction defects, fair housing, sponsorship duties per New York law, and rent receivership. He has written numerous articles for CAI s Community Trends magazine; the national publication Community Association Law Reporter, the New York and New Jersey Cooperator, CAI s Community Assets magazine, CAI s In Focus magazine, and the New Jersey Law Journal. His articles have addressed issues such as affordable housing, collections, rent receiverships, management and recovery of assessments and common charges, free speech concerns, ADR, fiduciary duty, municipal services, transition, fair housing, mediation, governance, rules and regulations, and foreclosure. Mr. Byrne is also a member of the Advisory Committee of the Community Association Manager, a publication serving the needs of the country s community association managers. He has served, and continues to serve, as a consultant in legal malpractice cases involving community association attorneys, and on behalf of management companies and associations with regard to their fiduciary duties. Prior to joining Ansell Grimm & Aaron, P.C., Mr. Byrne was a partner at Herrick, Feinstein LLP in its Community Association Department. He received his B.A. from Rutgers College in 1991 and his J.D. from Rutgers School of Law in David was admitted to the New Jersey Bar in 1994, the Pennsylvania Bar in 1997 and the New York Bar in In 2008, Mr. Byrne was named in the New Jersey Law Journal s list of top 40 Lawyers under 40 in New Jersey.* Ocean, NJ Woodland Park, NJ Princeton, NJ Newtown, Pa. White Plains, NY

22 Kathryn M. Gilbertson Shabel is the Assistant Chief, Office of Foreclosure, New Jersey Administrative Office of the Courts in Trenton, New Jersey. She joined the Administrative Office of the Courts in 2013 and oversees the day to day operations of the Office. Prior to joining the AOC, Ms. Shabel was an attorney in private practice. She served with Parker McCay in the foreclosure department, where her practice involved bankruptcy, real estate closings, title practice and foreclosure. Ms. Shabel received her B.A. from Georgian Court College and her law degree from Rutgers School of Law-Camden.