vol. 63, no. 7 • february 2015 ...high school: horace greeley high school, chappaqua, ny college:...

FEBRUARY 2015 THE BARRISTER

Published by the Camden County Bar AssociationVOL. 63, No. 7 • February 2015 www.camdencountybar.org

Miller Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4The Records You Should Keep (you, not necessarily your firm) . . . . . . . 5Notices to the Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Criminal Law: “Trashy House Exception” . . . . . . . . . . . . . . . . . . . . . . . . . 7Celebrating The Season In Style! . . . . . . . . . . . . . . . . . . . . . . . . . . 9 & 19Wine & Food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10President’s Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11Young Lawyer Happenings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Inside

Lobsters for LarcThe Association and Foundation congratulate the Young Lawyer

Committee for another successful Lobster Bake last September.When all was said and done, the YLC was able to present a

check for $10,623 to the Larc School in Bellmawr, a non-profit special education school serving students between the ages of 3 and 21 with a wide range of moderate to severe disabilities at no cost to the families.

Again, CONGRATULATIONS and keep up your good works!

(l-r) Young Lawyer Committee Chair Matt Rooney, Larc School Executive Director Susan Weiner, Foundation President Brenda Eutsler and YLC Member Mike Dennin .

Adopt-A-Family

Adopt-A-Family volunteers take a minute to warm up from the cold December weather after unloading cars, trucks, and SUV’s laden with donations from Bar members, firms and friends to ensure a Merry Christmas for Camden families . See page 16 for the full story .

One Night Only!

“Laugh ‘til you cry fun!” –The Barrister “Best Show of 2015! – New York Timeless “Great entertainment with lots of variety!’ – Variety

Playing to Rave Reviews!

6 PM • Wednesday, April 22nd

Colleen’s International • Magnolia

Use the insert to reserve early!

• • • • • • • • • • • • • • • • • • • • • • • • • • ••••

A live stage production from the Camden County Bar Foundation

• • • • • • • • • • • • • • • • • • • • • • • • • • •

Law School Scholarship Applications Due February 28

Each year the Bar Foundation dispenses a number of scholarship awards to deserving law school students. Scholarship applications are accepted from September 1st through February 28th. Applications must be received at Bar Headquarters no later than the February 28th deadline to be considered. Recipients will be notified in April.

For information about available law school scholarships, visit our website at www.camdencountybar.org and click on the “community” drop down.

FEBRUARY 2015

Wednesday, February 4th Hon. Peter J. Devine, Jr. Award Presentation

6 – 9 pmTavistock Country Club, Haddonfield

Thursday, February 5th Black Letter Blast on Criminal Law 2015

4 – 7:15 pmTavistock Country Club, Haddonfield

Saturday, February 7th Young Lawyer Committee Chili Cook-Off

6 – 10 pmAmerican Legion Post 371

42 N. Lakeview Drive, Gibbsboro

Tuesday, February 10thA Question of Balance to Build Your Law Practice


Wednesday, February 11thCLE Luncheon - Online Reviews &

Your ReputationInternet Marketing for Lawyers

Noon Tavistock Country Club, Haddonfield

Thursday, February 12th 22nd Annual Bankruptcy

Bench/Bar Conference4 – 7:15 pm

Tavistock Country Club, Haddonfield

Wednesday, February 18thCCBA Board of Trustees Meeting

4 pmBar Headquarters, Cherry Hill

Thursday, February 19thDiscovering Social Media: Common

Challenges & Best Practices4 – 6:15 pm


Tuesday, February 24th The Definitive Legal Writing Seminar


Wednesday, February 25thEthical Issues in Representing

Emotional Clients4 – 6:15 pm


Thursday, February 26thCLE on Tap! NJ Basic Estate Administration


Be an active participant in YOUR professional

organization.

ATTEND MEETINGS AND FUNCTIONS!

Published monthly, except July and August, by the Camden County Bar Association .

PresidentCasey Price35 Kings Highway EastSuite 110Haddonfield, NJ 08033

President-electJenifer G. Fowler76 East Euclid AvenueSuite 101Haddonfield, NJ 08033

First Vice PresidentLouis R. Moffa, Jr.457 Haddonfield RoadSuite 600Cherry Hill, NJ 08002

Second Vice PresidentEric G. Fikry301 Carnegie Center3rd FloorPrinceton, NJ 08540

TreasurerRonald G. Lieberman4 Kings Highway EastHaddonfield, NJ 08033

SecretaryMichael J. Dennin5709 Westfield AvenuePennsauken, NJ 08110

Executive DirectorLaurence B. Pelletier1040 N. Kings Highway, Suite 201, Cherry Hill, NJ 08034

Editorial Offices1040 N. Kings Highway Suite 201Cherry Hill, NJ 08034

[email protected]

Periodicals postage paid at Cherry Hill, NJ and additional offices (USPS 712 - 480) .

Classified Advertising rates $30 per insertion

Annual Subscription Rate $40

The Barrister

Views and opinions in editorials and articles are not to be taken as official expressions of the Association’s policies unless so stated, and publication ofcontributed articles does not necessarily imply endorsement in any way of the views expressed.

Board of Trustees

2015William F. CookEric A. FeldhakeEllen M. McDowellJerrold N. Poslusny, Jr.Carl Ahrens Price

2016Dawnn E. BriddellCarol A. CannerelliAdam E. GershTommie Ann GibneyJohn P. Kahn

2017Rachael B. BrekkeGregory P. DeMicheleLouis G. GuzzoT. Alex KushnerMichael V. Madden

Young Lawyer TrusteeMatthew T. Rooney

New Jersey State Bar TrusteeLinda W. Eynon

Immediate Past PresidentGary W. Boguski

OmbudspersonRobert G. Harbeson

ABA DelegateRichard A. DeMichele, Jr.

Editorial BoardGary W. Boguski, Co-ChairRonald G. Lieberman, Co-ChairJohn C. ConnellV. Richard FerreriWilliam GroblePeter M. HaldenJames D. Hamilton, Jr.John J. LevyCasey Price (ex-officio)

The docket

Tentative Agenda for February 18, Trustees Meeting

A tentative agenda for this month’s regular Board of Trustees meeting follows. The meeting will begin at 4 pm, at Bar Headquarters in Cherry Hill. All meetings are open to the membership. Anyone interested in attending should notify and confirm their attendance by calling Bar Headquarters at 856.482.0620.

I. Call to Order

II. Minutes from Previous Meeting

III. Treasurer’s Report

IV. President’s Report

V. Membership Committee Report

VI. Executive Director’s Report

VII. Young Lawyer Committee Report

VIII. Standing Committee Reports

IX. Foundation Update

X. NJSBA Update

XI. New Business (if any)

XII. Old Business

XIII. Adjourn

VERDICT: No Cause Damage Verdict: $0 Against Defendant (12/11/14)

Case Type: UM/UMIJudge: Anthony M. Pugliese, J.S.C.Plaintiff’s Atty: John Iannelli, Esq.Defendant’s Atty: Rachel Haninczak Vicari, Esq.L-2913-12 Jury

VERDICT: Liability Verdict: 0% Against Plaintiff, 35% Against Defendant Scott Siegal, 15% Against Defendant South Jersey Hospital Group, 40% Against Defendant Kennedy Health Systems; Damage Verdict: $262,500 Against Defendant Scott Siegal, $112,500 Against South Jersey Health Systems, $300,000 Amended to $250,000 Against Kennedy Health Systems (12/15/14)

Case Type: Medical MalpracticeJudge: Robert G. Millenky, P.J.Cv.Plaintiff’s Atty: Gary Ginsberg, Esq.Defendant’s Atty: Joseph Lang, Esq. and Jill O’Keefe, Esq.L-3224-11 & JuryL-4498-12

VERDICT: No Cause Damage Verdict: $0 Against Defendant (12/16/14)

Case Type: Auto NegligenceJudge: David M. Ragonese, J.S.C.Plaintiff’s Atty: Brian Katz, Esq.Defendant’s Atty: Melissa Bishop, Esq.L-3626-12 Jury

VERDICTS OF THE COURTSuperior Court of New Jersey


NAME: Eric FrankPRACTICE AFFILIATION: Duane Morris LLP – Gaming Practice GroupYEAR ADMITTED TO BAR: 2008OTHER BAR ADMITTANCES: PennsylvaniaPRIOR OCCUPATION: Political operativeRESIDENCE: Voorhees, NJ

Member on the spot

HIGH SCHOOL: Horace Greeley High School, Chappaqua, NY

COLLEGE: University of Michigan, Ann Arbor, MI (Go Blue!)

LAW SCHOOL: Rutgers Camden, Camden, NJ

WHAT LED YOU TO A LEGAL CAREER: Always had a passion for government and politics.

BEST PERSONAL/PROFESSIONAL ATTRIBUTE: Patience

GREATEST FAULT: Fear of putting myself out there

WHAT I DO TO RELAX: Hang poolside with my wife and son

HOBBIES: Dedication to Michigan Sports, Politics

FAVORITE RESTAURANT: Terra Nova - Sewell, NJ

FAVORITE TELEVISION SHOW: Toss-up between The Wire and The West Wing

FAVORITE MOVIE: I have six: The Fast and the Furious, 2 Fast 2 Furious, The Fast and the Furious: Tokyo Drift, Fast & Furious, Fast Five and Fast & Furious 6.

FAVORITE AUTHOR/BOOK: Daniel Quinn/Ishmael

FAVORITE VACATION PLACES: Tacuba, El Salvador (Mom’s hometown) and San Francisco/Napa Valley

FAVORITE WEBSITE: The Duane Morris Gaming Law Blog: http://blogs. duanemorris.com/duanemorrisgaminglawblog/ (Shameless Plug)

FAVORITE MUSEUM: Henry Ford Museum – Dearborn, MI

FAVORITE WEEKEND GETAWAY: My backyard

ENJOY MOST ABOUT PRACTICING LAW: The team I work with day in and day out

MOST ADMIRED PERSON AND WHY: David Bonior, former Democratic House Minority Whip—Made me believe in government and taught me that government isn’t the enemy

WHEN AND WHERE HAPPIEST? In the morning, entering my son’s room and seeing his bright smile everyday

CHERISHED MEMORIES: Honeymoon in Hawaii. Most relaxing two weeks I’ve ever had.

GREATEST FEAR: Not being successful in what I do.

ALTERNATE CAREER CHOICE: Take over for Jonathan on Property Brothers

GREATEST LESSON LEARNED FROM PRACTICE OF LAW: Never stop improving

PERSON YOU’D MOST LIKE TO DINE WITH: Bill Clinton

PET PEEVE(S): Improper use of “me” and “I”

LIFE’S HIGHLIGHTS: Bringing my son home from the hospital

GREATEST ACCOMPLISHMENT: 2003 Election Cycle

#1 PROFESSIONAL GOAL: Enhance my gaming expertise and experience.

#1 PERSONAL GOAL: Improve my Spanish.

LIFE EXPERIENCE(S) WITH GREATEST IMPACT: Losing. I’ve had my fair share of wins in life but every time I lose, be it a political campaign or a game, I learn so much more about myself and the people around me.

ADVICE TO YOUNG LAWYER: Get out there. Meet as many people (not just lawyers) as you can.

HOPE TO BE DOING IN 10 YEARS: “Hope?” I hope to be travelling the world.

FAVORITE QUOTATION: “It’s time to ask Americans to be patriotic about something other than war.”

2014 RECOGNITIONS OF NOTE: • Selected as one of Global Gaming Business Magazine’s “40

Under 40,” 2014• “New Leaders of the Bar,” New Jersey Law Journal, July 2014

The Civil Practice Committee recently presented the “2014 Civil Practice Update” CLE seminar at Tavistock . Presenters included John L. Slimm, Marshall, Dennehey, Warner, Coleman & Coggin; Louis J. DeVoto, Rossetti & DeVoto, P .C .; presenter/moderator William F. Cook, Brown & Connery LLP; Judge Michael J. Kassel, J.S.C., Camden Vicinage; Francis X. Ryan, Green, Lundgren & Ryan, P .C .; and George P. Coan, Manager, Superior Court of NJ, Law Division, Civil Part .

CONIGLIO FAMILY & SPORTS CHIROPRACTICFREE Telephone Consultation

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THE BARRISTER FEBRUARY 2015

Miller Trusts

By Thomas D. Begley, Jr., CELA

This is the final article in a series devoted to protecting assets, because New Jersey is an income cap state for purposes of nursing home level of long-term care services. Nursing home level of services includes nursing homes, assisted living and most home care. The income cap is 300% of the Federal Benefit Rate (FBR). For 2015, 300% of the FBR is $2,199. This figure is indexed for inflation. This means that if an individual’s income exceeds $2,199 in 2015, they would not be eligible for Medicaid long-term care services. Historically, individuals with income in excess of the income cap were eligible for Medicaid in a nursing home setting, because New Jersey had a “Medically Needy” program. This enabled individuals to spend down income to obtain Medicaid eligibility. The Medically Needy program applied only to nursing home care and not to assisted living or home care. New Jersey has obtained a waiver from the federal government to abolish the Medically Needy program. In place of the Medically Needy program, New Jersey will now permit Miller Trusts. Under a Miller Trust, monies in excess of the income cap are deposited into a trust known as a Miller Trust or Qualified Income Trust (QIT). Any income deposited into the Miller Trust is non-countable. A problem typically arises when an individual has both Social Security and a pension. Let’s suppose an individual has Social Security income of $2,000 per month and pension income of $1,500 per month. That would place that individual over the income cap of $2,199 per month. Under the New Jersey regulation, 100% of either source must be placed into the Miller Trust. In our example, either 100% of the individual’s Social Security or 100% of the individual’s pension could be deposited into the Miller Trust and bring the applicant’s income down below the income cap.

The Miller Trust must meet certain conditions:• it must contain only income of the individual;• it must not contain resources, such as income from the sale of

real or personal property or money from a savings account;• it must be irrevocable;• it must have a trustee to manage administration of the trust and

expenditures from the trust as set forth in federal and state law;• New Jersey must be first beneficiary of all remaining funds up

to the amount paid for Medicaid benefits upon the death of the Medicaid recipient; and

• income deposited in the QIT can only be used for specific post-eligibility treatment of income and to pay for costs of care.

From the Miller Trust only certain expenses are permitted. These include the following:

• $20 maximum bank fee;• trustee’s fees;• medical expenses;• Personal Needs Allowance (PNA);• Minimum Monthly Maintenance Needs Allowance (MMMNA);

and• any balances paid to the care provider

The PNA is $35 per month for a nursing home resident, $107 per month for an assisted living resident; and $2,199 per month for an individual receiving home care. The MMMNA is $1,966.25 per month for the community spouse increased by a certain calculation for an excess shelter allowance and reduced by any other income being

received by the community spouse. The trustee is almost always going to be an individual who is unfamiliar with trusts, so, in the author’s opinion, it is simpler to pay only the bank fees and the provider out of the trust and pay all of the other expenses listed above out of the funds not deposited into the trust.

The trust can be established by the individual trust beneficiary, someone holding a power of attorney on behalf of the individual, or the trust beneficiary’s guardian.

The trustee can be the spouse, child, someone holding a power of attorney on behalf of the beneficiary, or a guardian for the beneficiary, but cannot be the trust beneficiary. Whether a facility can serve as trustee is an open question. The trustee does not have to post bond. Statutory trustee’s fees are 6% of income; however, Division of Medical Assistance and Health Services (DMAHS) has not indicated what constitutes income. If all monies deposited into the trust are income, the trustee will receive a fee, if only monies remaining in the trust after payment of all disbursements are considered income, there will, in effect, be no trustee’s commissions. The state has published a template for a Miller Trust. It makes sense to use this template, because Medicaid workers will be familiar with it. If the lawyer drafts his or her own trust document, it will undoubtedly have to be sent to Trenton for review, and the application process will be significantly delayed. If a trustee resigns, the resigning trustee must provide an accounting. A successor trustee should be named in the document, and that trustee will take over responsibility for trust administration. If there is a trustee resignation, notice must be given to the remainder beneficiaries, to DMAHS, and to the County Board of Social Services (CBSS).

While the trust is being administered, there must be annual accountings to CBSS. The accounting must list all checks, including the date, the check number, the amount, and the payee. Receipts for all trust expenditures must also be provided. The accounting must also include the balance in the trust, copies of bank statements, and any change in the beneficiary’s income or resources. The accounting is given at the time of redetermination.

The trust will terminate if Medicaid medical assistance is no longer being provided or if the beneficiary is no longer over the income cap. This might occur if the individual is receiving annuity income for a term of years and the term of years expires. Upon termination, there must be notification to DMAHS and a payback. Theoretically, remainder beneficiaries can be named to receive any monies in the trust in excess of the payback, but no one will take a trip around the world on this money.

The trust must contain a spendthrift provision. The assets in the trust must be non-assignable. The trust must contain payback provisions. Anyone currently on the Medically Needy program will be grandfathered. It is likely that individuals will be grandfathered even upon redetermination. However, if a situation arises where an individual is on Medicaid pending the sale of a home and the home is then sold rendering the individual no longer eligible for Medicaid, upon reapplication will that individual be grandfathered? Likely, the answer is no, but DMAHS has not yet clarified this issue. Under Medically Needy the resource limit was $4,000 for an individual and $6,000 for a married couple. That resource limit is now reduced to $2,000 for an individual and $3,000 for a couple. The trust must be approved by CBSS and reviewed annually by DMAHS.


The Records You Should Keep (you, not necessarily your firm)

By Martin H. Abo, ABV/CVA/CFF/CFF

With 2014 recently ended, perhaps it’s a good time to consider reducing your clutter by getting rid of records you do not need to keep. For documents you want to retain, you can consider scanning and saving them digitally, but Abo and Company still suggests also keeping originally signed legal documents. When organizing your files, please remember these are general rules concerning your records.

Income Tax Returns and Related Items: Keep all federal and state income tax returns and supporting documents (i.e. items confirming your income and/or deductions) for a minimum of six years after the return’s filing date. Why? The IRS can assess additional taxes within three years of its filing date, but has up to six years in which to make a tax assessment if the IRS determines that a substantial amount of income was omitted from the return (or too many improper deductions).

Also, the tax returns and back-up income data are a “road map” to facilitate settling your affairs or to assist someone handling your affairs. This will provide a very good idea of what assets you have and where they are. Put each year’s return and data in an envelope (or back up disk) marked with the year on it, and the date (six years later) you should dispose of it.

Keep all final settlement letters of tax audits for at least six years after the date of the close of the audit.

Gift Tax Returns: If you ever made gifts where you filed federal gift tax returns, those returns along with the back-up should be

retained forever. These returns will need to be filed with estate tax returns.

Mailing Receipts: If you mail your return by certified mail, or by an express carrier, keep the receipt with your copy of the tax return. Make sure the receipt shows the date the return was mailed. If your return is filed electronically, keep a copy of the electronic filing confirmation. In the event the return is misplaced or lost by the tax authority, this documentation will save you from late filing or payment penalties.

Residential Property Records: The tax laws allow part of the gain to be tax-free when you sell your residence. However, you still might have to substantiate the amount of the gain. Because of this, you need to keep closing statements from all home purchases and sales and records of amounts spent for home improvements.

Stock and Bond Records: Keep records of your investment (e.g., stocks, mutual funds and bonds) purchases. Besides providing you with a date for determining the type of gain —long-term versus short-term—these records establish your basis in the investment and help to compute the gain/loss when you sell them. In addition, keep records that show a return of capital dividends and complete back-up of DRIP (dividend reinvestment plans) additions which establish your basis in those shares.

Because of the potential of class action lawsuits that might affect (Continued on Page 8)

We are pleased to announce that Martin H. Abo, CPA/ABV/CVA/CFF and Joseph P. Cipolla, Jr., CPA/ABV/CFF/PFS/CFE are Co-Managing Members of Abo Cipolla Financial Forensics, LLC. This services division is an affiliate to our individual core accounting firms,

exclusively providing expert witness testimony on financial matters, and other litigation support services as well as business valuations.

Abo and Company, LLC • Abo Cipolla Financial Forensics, LLC

Through the years our clients’ needs often require expanded technical expertise for complex litigation. The judicial, legal and insurance communities and their clients often demand a full range of dispute resolution, valuation, and forensic services. To meet these needs, we have added Abo Cipolla Financial Forensics to our existing but separate practices.

Marty has always honestly stated, “he knows what he doesn’t know!” He has also confidently affirmed, “he knows who knows what he doesn’t know!”

It is for this reason that logic demanded an alliance with a strong associate. Cipolla & Co., LLC, successful in their own right, shares Abo and Company’s commitment to high ethical standards. Together we form a much larger organization with increased depth, additional skilled staff, and an extremely expanded range of expertise that complements both firms.

Abo and Company and Cipolla & Co. have shared support relationships for many years. The combination of our experience and our professional service teams makes a formidable ally in any legal scenario. Frankly, we at Abo and Company already knew what the survey of lawyers polled by the New Jersey Law Journal revealed in awarding Cipolla & Co. Best Economic Damages Firm, Best Matrimonial Financial Expert and Best Forensic Accounting Firm.

The Best just got better!

Should you wish to simply confer on an issue, we welcome the conversation. Go to www.aboandcompany.com to review the curriculum vitae of the principals of Abo Cipolla Financial Forensics as well as a general profile of the valuation and litigation support aspects of our existing practices. We are here to assist our judiciary and legal colleagues in any accounting, tax, valuation, investigative or litigation support project where our team may be of benefit.

South Jersey Office North Jersey Office Pennsylvania Office New York City Office307 Fellowship Road, Ste 202 851 Franklin Lake Rd. 449 N. Pennsylvania Ave. 1301 6th Avenue, 35th FlMt. Laurel, NJ 08054 Franklin Lakes, NJ 07417 Morrisville, PA 19067 New York, NY 10019(856) 222-4723 (201) 490-1117 (215) 736-3156 (212) 495-0400


NOTICES TO THE BAR

District Fee Arbitration Committee

The Supreme Court of New Jersey Office of Attorney Ethics is seeking attorney and non-attorney volunteers to serve on the District Fee Arbitration Committee. To qualify for service on the committee, a member must reside or work in Camden County.

An attorney member must have no past history of attorney discipline and no pending ethics investigations against him/her. The attorney must also have no record of criminal convictions or pending criminal charges. Members are appointed for a four year term, commencing September 1, 2015.

The time commitment varies from district to district. In general, members should expect to spend approximately one day per month conducting fee arbitration hearings. Public members should have the flexibility to participate in fee arbitration hearings during the normal business day.

To be considered, attorneys should forward a resume or law firm biography, and public members should forward a short resume to:

Casey Price, Presidentc/o Camden County Bar Association1040 N. Kings Highway, Suite 201

Cherry Hill, NJ 08034Or fax to: 856.482.0637

Resumes must be received no later than February 13, 2015 to be considered.

New Guidelines for Using Electronic Devices in

Court ProceedingsThe Judiciary has announced revised guidelines for the use of

electronic devices in the courts to be effective February 2, 2015. The new guidelines replace the 2003 edition and were developed to address advances in technology and changes in who reports the news.

Under the new guidelines, all court users who intend to use electronic equipment in the courtroom, from attorneys who use laptops for accessing case files to reporters who use equipment to take notes, must sign an agreement to adhere to the guidelines for electronic equipment. The agreement is valid for 12 months. Those who violate the agreement could be sanctioned, including, but not limited to, contempt of court.

Aside from that change, the procedure to record, photograph or broadcast a court proceeding remains essentially the same, with a request made to the vicinage for permission, judicial discretion determining that permission must ensure fair proceedings, and exclusions for certain proceedings according to statute and the Rules of Court.

The general requirements and responsibilities of the requestor are listed, including pooling requirement, courtroom placement of equipment and other logistics.

The new guidelines reflect the changing definition of news media to include smart phones and tablets and new forms of media, including social media, which have altered how news is gathered, reported and shared.

The new Supreme Court Guidelines on Electronic Devices in the Courtroom, the Agreement for the Use of Electronic Devices, and the Request for Permission to Photograph, Electronically Record or Broadcast a Court Proceeding, are available at njcourts.com.

We rely on members to provide announcements for the Legal Briefs section. If you have a new member of the firm, you’ve moved or you or a member of your firm has received an award or recognition for a professional or community activity, we want to know and share it with fellow bar members. Please email your submissions to [email protected].

Legal briefs

The Law Office of Katrina Vitale LLC is pleased to announce that their office has moved effective January 19th. The new office address is: 105 North Broad Street Woodbury, NJ 08096 Phone: 856.845.5353 / Fax: 856.845.5333


When they see the name “Albin” as the author of a New Jersey Supreme Court opinion, most criminal practitioners know that they should stand up and take notice. A former member of the defense bar, Justice Albin does not always side with the defense, but his opinions are going to be interesting and will express a view of criminal law that other members of the Supreme Court, less exposed to criminal law, may tend to honor.

Recently, Justice Albin wrote a majority opinion which expressly declined to extend a “trashy house exception” to the warrant requirement. While some wags in the defense bar might have expected Justice Albin to coin the phrase, “trashy house exception,” he was in fact borrowing the term from a line of 3rd Circuit cases dealing with standing to search abandoned homes. United States v. Harrison, 689 F.3d 301, 307 (3d Cir.2012). The Harrison Court’s determination as to what conditions comprised an abandoned house was a point of contention between Justice Albin, writing for the majority, and dissenting Justice Patterson. Essentially, Justice Albin and Justice Patterson conducted a scholarly argument on just what constituted a house so trashy as to appear abandoned as opposed to a house trashy, but not trashy enough to be considered abandoned.

The “trashy house” idea is of great interest in Camden County and Camden City as well as many other urban centers. A recent article in the Courier Post noted a survey conducted found that 14.9% of the city’s 22,906 buildings are abandoned for a rough total of 3,417 abandoned buildings in the City.1 While this survey includes abandoned commercial properties as well, the end result is the same: Camden has many unoccupied structures falling into various states of disrepair. When they fall into disrepair, there may still be a privacy right according to Brown.

Brown is the genesis of a number of different cases arriving at differing results upon differing grounds, but which, on their face, seem related. In State v. Linton, 356 N.J. Super. 255 (2002), the Court held that a defendant who hides drugs in someone else’s vacant property has no constitutionally reasonable expectation of privacy. Linton involved police patrolling a heavy drug area in Plainfield. Officers noted they had confronted some individuals on the street who in turn, claimed they had attempted to buy drugs at an “abandoned property” at 215 Monroe. The individuals further related that upon the unsuccessful sale, the seller had returned to the abandoned residence. Police then entered and searched the property finding narcotics. The Court determined that absent a privacy right to be protected, Linton did not have standing to object and his application was denied. The Linton Court noted that the house that was searched had every indication that it had been abandoned. With no locks, trash strewn throughout and a broken window, there was ample support for the police determination that the property was abandoned. Pre-dating the Brown decision by 12 years, the Linton Court determined that 215 Monroe was trashy enough to be considered abandoned.

One early problem with the Linton opinion was that it relied heavily on dicta from the State v. Perry decision. 124 N.J. 128 (1991). To be fair, the Linton court made clear that it only looked to Perry for “guidance,” but the Court in Perry had decided the search issue on the plain view exception, not the issue of abandoned house. Perry involved a vacant and likely abandoned house in Camden where Perry and another individual were having a dispute over drugs and money. Perry strangled the other individual, but the subsequent search of the premises for drugs and money absent a warrant formed the basis of a Post Conviction Relief application alleging Ineffective Assistance

of Perry’s counsel for failing to seek suppression of the search of the abandoned house. The issue of abandonment versus the plain view exception was not raised at the hearing nor was it the lynchpin of the decision. Perry, while interesting reading, was not determinative of the abandonment issue.

In Perry and Linton, the problems with this area of search law were apparent. Abandoned buildings in urban areas were being used in the drug trade. It wasn’t until Brown that the flip-side of that issue was considered, i.e., that poor people may not maintain their homes well, but they still have a right to privacy in their homes.

The Brown opinion started, in a clear effort to reinforce the bedrock principle we all rely upon, with the language; “Our Federal and State Constitutions protect the sanctity of the home from unreasonable searches by government officials. The constitutional protections afforded to the home make no distinction between a manor estate in an affluent town and a ramshackle hovel in an impoverished city.” Brown, at 50.

From that point forward, it was clear to most observers where the Court was leaning, and in a 4-2 decision, the sanctity of ramshackle hovels was maintained. The Brown Court noted that despite its trashy condition, the hovel at 820 Line Street in Camden was determined by the trial court to have not been an abandoned house. The decision turned in large part, upon the fact that the alleged drug dealers standing in the area of 820 Line, who were observed making actions consistent with drug sales, were using a key to enter a locked front door. Hence, 820 Line, with its broken window, trashy interior and absence of an electric meter, despite all of its shortcomings, was still being locked to control access and hence, not abandoned.

The first issue was standing, but the issue is, was and remains intertwined with whether the property at 820 Line Street was abandoned. Absent standing, the Brown Court would have been compelled to dismiss the challenge in the same way that Linton failed. Noting the trial Court’s findings however, Justice Albin found standing and grounded it in the idea that the State could not prove that 820 Line Street was abandoned. Despite the condition of the property, Justice Albin stated plainly, the burden rests upon the State to determine whether a property is abandoned. Absent that proof, the search will be deemed unconstitutional.

Perhaps mindful of his critics and the dissent coming from Justice Patterson, Justice Albin made note of Linton and Perry in his opinion. While Perry seemed easily distinguished, Linton remained problematic. In a deft side-step of the precedent problem Linton seemed to provide, Justice Albin noted only that “whether the evidence of abandonment in Linton meets our current Article I, Paragraph 7 jurisprudence is certainly debatable.” Brown, at 62.

That side-step proves to be the deepest thrust and most problematic aspect of the opinion. To overcome the short-fall, Justice Albin created a non-exhaustive list of factors to be considered when determining whether a property is abandoned. Justice Albin urged the use of utility records State v. Domicz, 188 N.J. 285, (2006), to determine if a property is occupied. He further noted the easy access to property records through online data search tools and the ability to use simple observation to determine whether people access the property. These factors and others should be used to generate facts which support an abandonment determination. But in a well written dissent, Justice Patterson notes; “[T]he court construed defendants’ installation of the padlock on the front door of 820 Line Street to be an exercise

CRIMINAL LAW

“Trashy House Exception”By Chris Hoffner, Office of the Public Defender

(Continued on Page 17)


securities you owned and your need to furnish proof of your period of ownership if you want to be included in the class, we suggest you keep all records of your stock and bond buys and sells for at least ten years.

Tax tip: If you’ve owned DRIP or other stock for many years and do not have the back-up information and want to dispose of those stocks, consider using them instead of cash to make your charitable contribution. You don’t need your basis; you will get a deduction for the full value of the stock; and do not have to recognize the capital gain on those shares.

Gifts or inherited assets: Keep all records showing your basis of inherited assets, or assets received by a gift. These will be needed if you sell the assets, and might be needed if you are involved in a marital separation. If you received a gift of property or inherited assets, and you do not have the tax basis, now is a good time to try to get it.

Medicaid applications: People applying for Medicaid need to produce all bank and brokerage statements for the full five years before their application date. For this reason, we suggest retaining these records for five years.

Rental Real Estate Records: For any rental real estate or depreciable business property that you own, keep records of the property’s cost, the purchase date, costs of all improvements, the method used to calculate depreciation and a schedule of all depreciation claimed on the property. Maintain these records until you sell or dispose of the property. Once you sell the property, keep these records with the tax return on which you report the sale. You need to keep current leases handy, and we would also retain the immediate preceding lease for that property in case of rent control or other claims made against you and you would need to refer to the lease.

Partnership and Business Agreements: You should retain all partnership, member, and corporate organizational, buy/sell or cross purchase agreements as long as you have an interest in any currently owned business interest or entity. You should also retain all basis calculations.

Employment Contracts: Any employment contracts, stock purchase, option, restricted stock or similar agreements should be retained as long as you are employed by the firm/company and then at least through the date of expiration of any of the commitments should they go past your employment. It is also important to have these handy for your heirs if you die and there are limited exercise

periods that survive you. We also suggest preparing a separate calendar of exercise dates so you do not lose track of deadlines for any opportunities.

Art, Jewelry and Collectibles: Keep all receipts of purchases as long as you own the property. If any are sold put the receipts with your tax information for the year of sale and retain with those records until it is time to discard that year’s tax information. These will be needed to substantiate cost basis when sold and if you need to establish the loss for insurance purposes. In the event you donate any to charitable organizations for their use, you will need the cost basis for reporting the gift for deduction purposes.

Military papers: Military benefits, discharge, decorations and perhaps military burial arrangements should be retained permanently. Our colleague, Ed Mendlowitz CPA, knew someone that applied for, and was granted, partial military disability benefits 65 years after serving in World War II.

Personal Records: Keep a permanent file of personal records—such as marriage license, divorce agreements, prenuptial agreements, name change papers, family trees and birth certificates.

Retirement Plans: If you have made nondeductible contributions to an IRA, 401k, 403b or employer retirement account, maintaining records of these contributions will facilitate proving, and reducing, the tax liability when funds are withdrawn. Discuss with your tax preparer (hopefully us at Abo and Company) if you made non-deductable IRA contributions and you have no clue what form 8606 is. You should also retain back-up of Roth IRA conversions that were taxed. For this you can keep the tax return for the years the tax was paid. Also, retain all current plan documents and copies of all designation of beneficiary forms.

Legal Judgments and Loan Satisfactions: You as attorneys can better so advise, but we recommend keeping these forever. Is this not irrefutable proof that you do not owe those debts or obligations?

Insurance Policies: All current and in force policies should be kept in an easy to access place. This includes every type of insurance policy including life, disability income and long term care. We would retain the previous two years’ policies so that you would have a comparison if you need to make a claim, and to check rates and coverage.

Passwords: Keep these in a safe place.General Rule: When in doubt about a document, keep it.

Clear as mud, eh? Thanks to my bud Ed Mendlowitz, CPA for all of his great comments!

Martin H. Abo, CPA/ABV/CVA/CFF is a principle of Abo and Company, LLC and its affiliate, Abo Cipolla Financial Forensics, LLC, Certified Public Accountants – Litigation and Forensic Accountants. The firm is a Partner in Progress of the Camden County Bar Association. With offices in Mount Laurel, NJ, Morrisville, PA and Franklin Lakes, NJ. Marty can be reached at [email protected] or by calling 856-222-4723

The Records You Should Keep (you, not necessarily your firm)Continued from Page 4


Celebrating The Season In Style!

The Association’s Holiday Cocktail Party on December 15th at The Savoy in Pennsauken was another festive evening filled with good company, good food, good spirits and entertainment, as members of the bench and bar and their guests turned out for the Association’s annual Holiday Cocktail Party Extravaganza!

John Eastlack, Bill DeSantis & Paul Snyder

Tom Hagner & Jen Fowler

Karl Friedrichs, Mike Ferrara, Megan Costello & Brian Barr

Amber Tamir & Foundation President Brenda Eutlser

Andy Kushner, Linda Eynon & Lou Moffa

Holiday Party Committee Chair Greg DeMichele & Young Lawyer Trustee Matt Rooney

Sam Asbell, Larry Bafundo & Paul Snyder

Partner in Progress Marty Abo, Judge Fox & Dave Hasner

Janine Stein & Big Daddy Graham

Brian Herman, Amber Tamir & Adam Klein

Judge Blue, Mike Berger & Judge Silverman Katz

Greg Sciolla & John Cirrincione

Krista Trani & Scott Elwell Ellen McDowell & Rick DeMichele


For many, February is a month that provides a mercifully short bridge between the depths of winter to the promise of spring. However, while the month may offer the fewest calendar days, among them are ones honoring Presidents and sweethearts. While some consider “sweets for the sweetie” to mean chocolates (for traditionalists), a spa day (a more contemporary view) or a special dinner (more unisex), those who roam the world of wine know that it can mean what commonly are called dessert wines, a term suggesting such wines are meant to replace an end of the meal food indulgence. However, not all wines possessing noticeable residual sugar are incompatible with food, and most good versions are delightful. Yet, many wine drinkers avoid these wines, often because of a less than satisfactory past experience. As a longtime member of a wine group formed to gather and drink off-dry wines, I have been fortunate to taste more dessert wines than most, so I thought this month might be appropriate for us to discuss in some detail the virtues of these wines.

To borrow from Justin Hayward, successful “stickies,” as dessert wines may be called, are a question of balance. Residual sugar (“RS”) without supporting acidity usually will yield a wine that is “flabby” or, worse, cloying, depending on the amount of RS. This may be analogous to a red wine that offers a lot of overt fruit, but fails to have the requisite tannins to provide the structure needed to frame the fruit properly. Wines possessing noticeable RS typically result from a fermentation that stopped before all of the sugar in the grapes is converted into alcohol and carbon dioxide. This can occur naturally or by the winemaker’s hand, but that is a topic for another time. Rather, let us focus on some of the off-dry wines in the marketplace worth exploring. In view of space constraints, I shall focus our discussion on French wines, but, perhaps appropriately, conclude with Portugal’s most famous wine.

The two best known dessert wines probably are Sauternes and Port. The former are wines made in the southern part of France’s Bordeaux region made from Semillion, Sauvignon Blanc and Muscadelle, although not all wines include all three grape varieties. I hasten to add that wines referred to as “Sauternes” often include those made in the neighboring community of Barsac, a reference to which many proud Barsac producers will take exception. If there are two producers in this region that garner the most critical praise, it is Chateau d’Yquem in Sauternes and Chateau Climens in Barsac. The former long has been priced above its competitors, while Climens only recently has escalated into three digit territory. Indeed, these wines are exceptional, but there are many lovely wines from this region one can enjoy with such dishes as well-sauced chicken or the quintessential pairing with foie gras. These wines are costly to make, which can at least in part account for their price. As the grapes hang and lose water while retaining sugar, the volume of total liquid is reduced. Since not all grapes in a cluster ripen at the same rate, the pickers (people not machines) often must be deployed on multiple occasions to select on a grape-by-grape basis those that truly are ready. Add to this process the peril that nature may be unkind to the crop and one gains a better understanding of the cost and an appreciation for the resulting wine. If you want to try wines from this region that are, in

relative terms, affordable, consider second wines from top estates or venture outside Sauternes (and Barsac) to wines from Monbazillac, Loupiac or Cadillac.

Another French region offering some wonderful dessert wines is the Loire Valley. Here, the grape of choice is Chenin Blanc, and the appellations within the region to consider are Coteaux du Layon, and within that broader region the wines of Quarts de Chaumes and Bonnezeaux, as well as the better known Vouvray (for the demi-sec, or sweeter still, Moelleux bottlings). Once again, the best wines can be expensive, but they can be positively luscious. If you want a wine that is only slightly sweet and fairly reasonable in price, Vouvray demi-secs can be a good option.

An area of France producing off-dry wines that can offer some of the opulence of Sauternes at prices that can be easier to swallow is Jurançon. While the standard bearer for these wines is Domaine Cauhapé, which labels its dessert wines based on when the grapes (usually a blend dominated by Petit Manseng ) were harvested, an increasing number of producers makes wines that are finding their way to area stores and do not have the cachet and corresponding tariff of Cauhaupé.

In France’s northeastern reaches, the beautiful Alsace region produces an array of wines that includes off-dry bottlings. While there are some producers who make the relatively rare SGN (Sélection de Grains Nobles) wines that do not require a mortgage to acquire, often the lack of pedigree will show. SGNs from top producers, usually found in half-bottles, will cost more than most may want to pay. However, if you want to try an Alsace wine with modest RS, look for those labeled Vendange Tardives. These will mostly be made from Riesling or Gewurztraminer grapes, and because the conditions allowing well-balanced “VT “ wines to be made do not occur every year, these wines will not commonly be found. Still, they can be worth searching out. To further complicate matters, a trend developed in Alsace where a number of top producers began to bottle VT level wines as regular offerings. This has caused confusion, and some disappointment from consumers wanting a bone dry wine, but if you know where to look, it also makes wines with some noticeable RS more affordable than if they were labeled as VT.

Not all dessert wines are made from white grapes, and in the beautiful area of southern France near the Spanish border is the coastal town of Banyuls. In the hills surrounding this town, red grapes, primarily Grenache, are grown, basking in the glorious (and nearly daily) sun. After the harvest, well-ripened grapes are fermented, with the process stopped by the addition of grape spirit allowing the off-dry wines labeled as Banyuls to be crafted. Pairing these wines with chocolate dishes can be a sinfully decadent experience, and because the wines are underappreciated, they often will be affordable options.

By Jim Hamilton

Wine food&

(Continued on Page 13)


President’s perspective

It’s very interesting how the movie Groundhog Day changed what we think about Groundhog Day. Before the movie the phrase represented one or more of the following: (1) an unreliable weather report, (2) looking forward to an early spring, or (3) dreading a long winter. While that representation still holds (it better for the sake of Punxsutawney, PA and its most famous resident) there is now a second thought that comes to mind when Groundhog Day is mentioned. That is the repetition (endless repetition maybe) of the same thing. Most people know that in the movie Groundhog Day the main character, portrayed by Bill Murray, relived the same day—Groundhog Day—over and over until something life changing occurred thereby ending the repetition of events.

The First Representation—Science Anyone?I have a love/hate relationship with Groundhog Day. I want spring

to get here as fast as possible. Spirits are high when the critter predicts an early spring only to be dashed by the harsh reality that we still have science and the calendar working against us. The reality is spring won’t arrive for a few months regardless of the groundhog’s prediction. On the other hand, when a long winter is predicted spirits start out low until reality hits and, well, winter has a long way to go regardless of the famous rodent’s prediction.

As an aside, did you ever see one of those optical illusions where there are two lines stacked on top of each other and on one there are arrows pointing out and on the other the arrows are pointing in? You know how the reality is that the lines are the same length despite the fact the one with the arrows pointing out appears to be significantly longer than the one with the arrows pointing in? That’s kind of what Groundhog Day is like to me. Regardless of whether the varmint says its going to be a long winter or an early spring the timeline is the same and the sands of time will pass leading to spring when it is due to arrive.

Some things can be controlled and some things can’t. I love Groundhog Day and what it represents. The fun of wishing the winter away and the fact there really are only about six more weeks until the temperatures start to rise. The realities may be evident but there’s no reason not to have some fun with the situation.

The Second Representation—Let’s Go to The Movies

Reflecting on my time as president I can’t help but think ahead to the fact that 365 days after ascending to this office I will leave and Jenifer Fowler will take over as the 89th president. Jen is going to be a great president as are those lined up behind her. What strikes me is the cycle of the presidency and how the new president goes to the Bar Leadership Institute in March, plans for their installation dinner in the spring, takes the oath of office in late May/early June, enjoys a quiet summer, ramps up in the fall and then sometime in winter—usually coinciding with BLI in March—they see the end of their term approaching and the incoming president starts planning for her term. The cycle is destined to repeat itself.

So let’s return to the movie. When Bill Murray first realizes he is stuck in this never ending Groundhog Day he goes a little nuts. He engages in self destructive behavior knowing that every morning when he wakes up the day will reset itself and whatever trouble he got into the day before would be wiped away and a new day—albeit the same day—would begin. The twist is that Bill Murray’s character eventually realizes he can use

this opportunity to better himself a little bit every day. By the end of the movie, because he takes advantage of that opportunity, he has grown significantly as a person and achieves goals that never would have been possible without that growth.

The CCBA is comparable to Groundhog Day in that the cycle of the presidency repeats itself every year but everyone in a leadership role in the CCBA—officers and board members—work hard to better the association a little bit every day. We strive for improvement and live each day as an opportunity to do more for our members, the community and the profession.

Science Loves the MoviesThe day will soon come when I leave this office and Jen takes over.

Shortly thereafter Jen will hand things off to Lou Moffa and the cycle will go on. Regardless of whether it feels like the year is moving fast or slow I know the day will come when I have to surrender the gavel and leave office (in case you are wondering the year is flying by). Science and the calendar control that fact. What I control is trying to be a better president every day. In fact I know that is an aspiration for all of us leading the CCBA. We work together trying to do our best to constantly improve. We invite your participation. Help us to do more. Just like Bill Murray’s character in the movie we will all be better for it.

Happy Groundhog Day and until next month I wish you all the best…— Casey

The GroundhogBy Casey Price

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YOUNG LAWYER CHAIR

Cold? Hungry? Want to Help Our Veterans? Cook-Off for a Cause!

By Matt Rooney

I may be a little biased, it’s true, but few groups can innovate to combine charity and fun quite like our Camden County Bar Association’s Young Lawyer Committee.

After all, isn’t that what it’s all about?Accomplishing good things and having a

good time in the process?And it’s an added bonus when we can

support the awe-inspiringly brave men and women in the U.S. military who guarantee our freedoms overseas, notably, the fair, equal and unbiased administration of justice.

Next up: our second annual Cook-Off for a Cause on Saturday, February 7th from 6 to 10 p.m. at American Legion Post 371 located at 41 Lakeview Drive in the Camden County community of Gibbsboro. Tickets are modestly priced at $40 per person, and all net proceeds will benefit both the charitable causes of the Camden County

Bar Foundation and the good work of New Jersey Veterans Haven of Camden County.

Warning: don’t eat a big lunch before you come.

Several contestants from our legal community will enter their best recipes for chili and cornbread, honed over the years, into a competition of unbridled culinary combat. It’ll be much less stressful (but much more delicious) than oral argument! Our winning cooks receive awesome prizes and bragging rights. Everyone else gets to enjoy four hours of chili and cornbread taste-testing, deserts, spirits, fellowship, networking, and a lively DJ. Don’t forget the raffle baskets, either. We’re doing it right.

Your generous donations will also be money very well spent.

Believe it or not, experts estimate that there are no less than 7,500 homeless veterans

living in New Jersey. I don’t know about you, but I think that’s an absolute disgrace given the relative wealth of our country and in consideration of the selfless sacrifice provided by military service members who populate our towns, families, offices and circles of friends.

At the Veterans Haven South facility, eligible veterans undergo a long-term care program oriented towards their psychological, social and vocational rehabilitation. The ultimate goal? Help them reenter the active workforce and develop critically-important basic life skills.

Do your part. All we ask: stuff your face for two supremely good causes! And if you would like more information about the good work of our ever-expanding Young Lawyer Committee, please contact me at [email protected], find us on Facebook (facebook.com/camdencounty younglawyers), and follow us on Twitter via our handle: @CCYoungLawyers.

See you on February 7th!

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6–10 pm • February 7th

To benefit the Camden County Bar Foundation &the New Jersey Veterans Haven of Camden County.

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While the one time leader of the region, Dr. Parcé, has stumbled a bit in recent times, high quality Rhone producer M. Chapoutier has become a reliable source of Banyuls and enjoys good distribution in our area.

Many a meal, or wine tasting, has ended with a glass of Port, particularly in these cold weather months, so it seems fitting to conclude this column by venturing into the lovely Douro Valley of Portugal. Visiting the area recently and dining with some quality winemakers served to confirm that Port production, steeped as it is in tradition, can be a challenge. Vintage Port (wine made from a year of high enough quality for producers to seek official sanctioning to bottle and release the wine as a “declared” vintage) can be a special wine, but often has been a challenge to sell to wine drinkers who want to buy affordable wine for immediate consumption. Winemakers everywhere are adjusting to the fact that younger wine drinkers often have neither the cellar nor patience to allow wines to mature. Historically, Vintage Port really needed time in the bottle to deliver the promise the vintage had to offer. As in Banyuls, in creating the finished wine, a grape brandy spirit is added to the fermenting grape to both stop the fermentation (and leave residual sugar) and fortify the wine’s alcohol level. If Port is opened too early, the alcohol can dominate the fruit, making the wine taste harsh or “hot” (noticeable alcohol, especially on the finish). These days, however, the window for “proper” drinking of Vintage Port is opening earlier. Currently, Vintage Ports from the widely acclaimed 2011 vintage are available for purchase, although at prices many will balk at paying. However, one of the reported benefits of the vintage

and the winemaking approach is that many of these wines will not require protracted cellaring to enjoy them.

What Port fans often can do for that buy-and-pull-the-cork convenience at a fairly reasonable cost is to purchase late bottled

vintage Port (a/k/a “LBV”). These wines, often from non-declared vintages, receive extended barrel aging (4 to 6 years) before they are bottled. The extended time in wood serves, in essence, to advance the maturity of the wine and allow consumers to enjoy a Port experience without the need to lay the wines down or pay the premium a declared Vintage Port commands. As with most wines, the less manipulation (fining, filtration, sterilization) LBV Ports receive, the more pleasure they can deliver.

Yes, I know, we have not even scratched the surface of this category of wines. Well, Spain and its Sherries, Germany and its several classes of late harvest wines, Hungary’s Tokajis, Austria’s and Australia’s stickies, decadent U.S. dessert wines, et als., will have to wait – perhaps until next February! Sweet dreams!!

Continued from Page 10 Wine food&

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Nobody gets a free house. Except if the lender fails to commence foreclosure until after the statute of limitations has expired— that is, according to the Honorable Michael B. Kaplan, U.S.B.J.

In In re Washington, Chapter 13 Case No. 14-14573, Adv. Proc. No. 14-1319, that’s how the opinion begins: “No one gets a free house.” But, Judge Kaplan continues, “with a proper measure of disquiet and chagrin, the Court now must retreat from this position.”

As is no doubt evident from its opening remarks, Judge Kaplan’s opinion is quite interesting.

The case involved a debtor who purchased a home in February of 2007 and almost immediately defaulted on the purchase money loan. The original maturity date under the note was 2037. However, the mortgagee filed a foreclosure complaint on December 14, 2007 and expressly exercised its right to accelerate the amount due under the Note. Additionally, in an assignment dated November 12, 2007, the mortgagee represented that the loan was in default as of June 1, 2007, based on which the Debtor argued that the loan was accelerated as of that date.

The foreclosure complaint was ultimately dismissed after a variety of procedural defects, and accordingly, no judgment of foreclosure was ever entered.

After the Debtor filed his bankruptcy petition in 2014, he commenced an adversary proceeding in which he sought to avoid the lien of the mortgage on the grounds that the mortgagee was time-barred under state law from enforcing both the note and the mortgage. Seemingly with great reluctance, Judge Kaplan ultimately granted the relief sought on the Debtor’s motion for summary judgment.

In reaching its holding, the court conducted a thorough analysis of the statutes of limitation applicable to the enforcement of notes and mortgages in New Jersey.

N.J.S.A. § 12A:3-118(a) requires an action on a note to be brought “within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.” Due to the plain language of that statute, the mortgagee in In re Washington conceded that

it could no longer require payment under the promissory note. However, it contended that its right to foreclose on the mortgage had not been extinguished due to the provisions of N.J.S.A. § 2A:50-56.1(c), which state that foreclosure proceedings must be commenced within 20 years after the debtor’s default of any obligations contained in the mortgage or note.

The Debtor argued that the applicable statute of limitations was six years since the note had been accelerated. This argument was based on another section of N.J.S.A. § 2A:50-56.1, which provides as follows: “An action to foreclose a residential mortgage shall not be commenced following the earliest of: a. Six years from the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, bond, or other obligation secured by the mortgage, whether the date is itself set forth or may be calculated from information contained in the mortgage or note, bond , or other obligation…” (emphasis added).

Due to this provision, the Debtor argued, the mortgagee was time-barred from foreclosing, because the maturity date was accelerated when the note holder demanded payment in full in 2007.

Judge Kaplan agreed with the Debtor, but only after a long look at the legislative history relating to N.J.S.A. § 2A:50-56.1.

N.J.S.A. § 2A:50-56.1 was enacted in 2009 after the Appellate Division recommended in Security Nat’l Partners Ltd. P’shp v. Mahler, 336 N.J. Super. 101 (App. Div. 2000) that the legislature create a statute of limitations specifically for mortgage foreclosure proceedings. Judge Kaplan’s court noted that the legislative history accompanying the enactment of the statute “provides a limited measure of guidance as to whether the maturity referenced in the statute includes an accelerated maturity date. The Committee Statements note that the six-year limitations period matches the six-year statute of limitations on actions based on contract law.”

Given this history, the court next looked at the statutes of limitation governing contracts in New Jersey for guidance as to whether the original maturity date or the accelerated maturity date is the trigger for calculating the deadline for suit. The court found that N.J.S.A.

§ 2A:14-1, governing “contractual claim[s] or liability, was “neutral on acceleration and maturity,” but N.J.S.A. § 12A:3- 118, pertaining to negotiable instruments, specifically provides that the time period for action begins upon acceleration (“…an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.”)(emphasis added).

The court found this specific reference to acceleration was a strong indication that the legislature intended that acceleration trigger the commencement of the six year time deadline in N.J.S.A. § 2A:50-56.1. With this holding, and its finding that the note holder accelerated the balance due in 2007 and was thus barred from foreclosing, the court next addressed the effect of the mortgagee’s inability to enforce the note and the mortgage.

The Debtor contended that the mortgagee’s proof of claim should be stricken because it did not hold an allowed secured claim. The court thus looked to Section 502(b) of the Bankruptcy Code, which states that upon objection a claim shall be allowed “except to the extent that . . . such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured.”

Having concluded that the mortgagee’s claim against the Debtor was unenforceable, the court looked to Section 506 of the Bankruptcy Code, which provides that “to the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void . . .” And with that, the court was compelled to conclude that the mortgage lien on the Debtor’s residence was void.

In re Washington may cause many debtors’ lawyers to look closely at the timing of their clients’ mortgage defaults. Who knows how many more debtors may be entitled to similar relief? However, lawyers should be cognizant of the distaste with which courts look upon the notion that a debtor may end up with a “free house.” After reading Judge Kaplan’s opinion, it might be advisable to invest in some mouthwash.

BANKRUPTCY UPDATE

How To Get A Free HouseBy Ellen M. McDowell


Choose CivilityA civility project sponsored by the Thomas S. Forkin Family Law American Inn of Court, in cooperation with Rutgers School of Law – Camden.

From a client management standpoint, emotionally charged family law litigation presents huge challenges for lawyers to maintain their cool adhering to an advisory role, rather than assuming the mantle of a client’s quest for vindication

• • •

When Zeal Turns into Zealotry, Everyone LosesBy Bruce P. Matez, Esquire

This past summer, my rabbi (a former attorney) delivered a stirring and compelling sermon about the difference between zeal and zealotry, and what happens when people turn their zeal for a cause into zealotry. As I listened, it occurred to me that what she was saying had relevance to the practice of law in general, and specifically the practice of family law. I could not help but think of some unfortunate situations wherein an adversary allowed zealous advocacy to become zealotry.

Many of us remember studying “professional conduct” and “ethics governing lawyers” in law school, where it was drummed into our heads that we have an obligation to zealously represent our clients, while conforming to the Rules of Professional Conduct. It may be surprising to discover the “zeal” requirement many of us learned is no longer found in the ABA Model Rules of Professional Conduct or the New Jersey Rules of Professional Conduct. Despite the elimination of “zeal” from the rules governing our ethical conduct, many family law attorneys continue to recognize the obligation to zealously represent our clients. However, many of us have unfortunately witnessed and experienced an adversary turn “zeal” into “zealotry” in too many cases.

Zealous advocacy is appropriate, professional, and often necessary, whereas zealotry is harmful to clients and their families, has a detrimental effect upon the way people perceive attorneys in general, and can have a devastating impact on our judicial system. Zealotry in the practice of family law is destructive and counterproductive, causes a breakdown in civility and collegiality among attorneys and completely unnecessary.

According to the Merriam-Webster Dictionary, the definition of zeal is a “strong feeling of interest and enthusiasm which makes one eager or determined to do something;” or “eagerness and ardent interest in pursuit of something.” Synonyms of zeal and zealous include passion, fervor, fire, gusto, vigor, and intensity. Zealotry is defined as “the excess of zeal; fanatical devotion.” Synonyms of a zealot include: crusader, fanatic, and militant partisan.

Family Law practitioners should be eager and ardent in providing representation to our clients. We owe clients our interest and enthusiasm in addressing their legal concerns. However, family law attorneys should take care not to become zealots in their effort to be zealous. It has been my experience that zealotry, the “excess of zeal” and “fanatical devotion” in family law cases, exponentially increases legal fees, adds unnecessary and unprofessional stress between attorneys, aggravates already tense and difficult situations, causes existing rifts between parties to widen and become irreparable, and destroys relationships, with a resultant negative impact on children, grandchildren, new significant others friends, and family. Zealotry in the practice of family law leads to unprofessional, uncivil, non-collegial conduct among attorneys, and ultimately increases all of our receivables.

Our judiciary needs to be trained to properly and adequately handle and discipline those attorneys who cross the line, who behave

unprofessionally, without civility and collegiality, and, in a word, become zealots. Zealotry is often found in letters from an adversary, briefs, certifications, and statements made on the record. I question and am disturbed by any unwillingness to take action to stop zealotry in the practice of family law. Judges are in the best position to require counsel to act with professionalism and cease zealotry.

While our Rules of Professional Conduct no longer require zealous advocacy, we should all strive to represent our clients with passion, devotion, enthusiasm and eagerness, and avoid assuming the role of crusader, fanatic, or militant partisan. Professionalism still suggests we be zealous advocates, but refrain from becoming zealots. When we all do so, the practice of family law, our clients, and our noble profession are all better served

___________________________________________________

Bruce Matez, Esq. is a partner in the firm of Borger Matez, P.A. and focuses his practice on family law.

Andres & BergerAward-Winning Certified Civil Trial Attorneys

Reputation and ResultsWith over 60 years of experience serving Southern New Jersey, the law firm of Andres & Berger, P.C. is recognized as one of the leading firms whose practice is limited to medical malpractice and personal injury litigation.

Top 100 New Jersey Super LawyersNew Jersey Monthly

Preeminent Lawyers (AV rated)Martindale-Hubbell

The Best Lawyers in AmericaWoodward/White, Inc

Referral of malpractice and personal injury claims involving significantpermanent injury or death are invited from members of the bar and

referral fees are honored pursuant to Rule 1:39-6(d).

264 Kings Highway East | Haddonfield, NJ 08033t. 856.795.1444 | www.andresberger.com

Reputation and ResultsWith over 60 years of experience serving Southern New

Jersey, the law firm of Andres & Berger, P.C. is recognized

as one of the leading firms whose practice is limited to

medical malpractice and personal injury litigation.

Award-Winning Certified Civil Trial AttorneysAndres & Berger

264 Kings Highway East | Haddonfield, NJ 08033 | t. 856.795.1444 | www.andresberger.com

Top 100 New Jersey Super LawyersNew Jersey Monthly

The Best Lawyers in AmericaWoodward/White, Inc

Preeminent Lawyers (AV rated)Martindale-Hubbell

Referral of malpractice and personal injury claims involving signifcant permanent injury or death are invited from members of the bar and

referral fees are honored pursuant to Rule 1:39-6(d).


Going the Extra Mile to Help Those in NeedAdopt-A-Family Sponsors Shared the Spirit of the Season—AGAIN!

The holiday spirit was alive and well in Camden County if the basement of St. Joseph’s Pro-Cathedral School in Camden was any indication. On Friday, December 19th members of the Bar, their family members, and student volunteers descended upon the school to bring the joy and happiness of the season to 105 needy Camden families for the 23rd Annual Adopt-a-Family project.

Though the recipient families will never know the donors responsible for brightening their holidays with gifts and food baskets,

we do, and are proud to offer our thanks and appreciation to those listed below who generously participated in this tremendous act of charity.

A special note of thanks to the Young Lawyers and various student volunteers who helped lift and carry all of the boxes of donations throughout the day — and never once complained.

Special Kudos and thanks to project co-chairs Marci Hill Jordan and Michael Ward for their tireless efforts to ensure another success!

• Jerry and Erica Rothkoff and Family• S. Robert Freidel• Honorable Mary Colalillo• Duane Morris • Alan Schwalbe and Family• Mayfield, Turner, O’Mara & Donnelly• Law Offices of Joseph A. McCormick, Jr.• Don Ryan and Family and the Fuller

Family• Thomas S. Forkin Family Law American

Inn of Court• Flaster Greenberg• Susan R. Dargay• Chambers of the Honorable Jerome B.

Simandle• TD Bank Legal Department• Camden Vicinage, Superior Court Judges• Morgan & Morgan• Marshall Dennehey Warner Coleman &

Goggin• Costello & Mains• DuBois, Sheehan, Hamilton, Levin &

Weissman• Paul & Katz• Sherman Silverstein• Interstate Outdoor Advertising• Michael J. Glassman & Associates• Law Offices of Lee M. Perlman• Florio Perrucci Steinhardt & Fader• W. Craig Knaup• Honorable Andrew B. Altenburg, Jr.• Robert J. Borbe• Law Offices of Styliades & Jackson• Mintzer Sarowitz Zeris Ledva & Meyers• Mike Papandrea• Honorable Chief Judge Gloria M. Burns• Terry O’Brien• Duane Morris Administrative Staff

• Loughry and Lindsay• Martin, Gunn & Martin• Michael J. Veneziani• Levy Baldante• Adinolfi & Lieberman• White and Williams• Michael Brown• Ellen Wry and Central Appellate

Research• Montgomery McCracken• Brown & Connery• Annette DiMatteo• Rose Marie DiMeo• Steven J. Blumenthal• Lyons, Doughty & Veldhuis• Brian S. Wolosky• Bernetich, Hatzell & Pascu• Lynch & Karcich• Capehart & Scatchard• Perlman Family• Melissa & Steve Antinoff• Gail Olans• Matthew, Lauren, Jake and Ryan Portella• Kulzer & DiPadova• Lavan Law• Neuner & Ventura• Taylor, Taylor & Leonetti• Westmont Associates• Fredric Marro & Associates• Del Duca Lewis• Tom, Carolyn and Russell Uliase • Carolyn J. Campanella• Glenn Henkel• Law Office of Kenneth W. Landis• Green, Lundgren & Ryan• Robert A. Gleaner• Melissa M. Ferrara• Sean Hadley

• Chambers of Honorable Joseph H. Rodriguez

• Honorable Michael Donio• Eisner and Fowler• Hyland Levin• Earp Cohn• Dempster & Haddix• Archer & Greiner• Honorable Linda Baxter and Robert

Baxter• Christine O’Hearn• Craig Annin & Baxter• Law Office of Adam M. Kotlar• Locks Law Firm• Freeman, Huber, Sacks, Brennan &

Fingerman• ACE Reporters, Inc.• Office of the Prosecutor, Camden County• The Ferrara Law Firm• Bruce and Dawn Wallace• Chambers of Honorable Robert B. Kugler• Kumor Law• Graziano & Flynn• Sue and Joe Santangelo• Marks, O’Neill, O’Brien, Doherty & Kelly• Koch-Israel Family• Weitz & Luxenberg• Donnelly Ritigstein• Edward S. Wardell• Michael Ward• Connell Foley• Jerry Poslusny and Family• Dembo & Saldutti• Cozen O’Connor• Zeller & Wieliczko• Jenna Sauro• Sander, Carson & Lane

ADOPT-A-FAMILY SPONSORS2014 DONORS


of a constitutionally significant possessory interest in the property, and characterized the barricading of the unhinged back door as an assertion of a privacy claim.” Brown, Patterson dissent, at 66.

Going forward, practitioners will no doubt see an up-tick in “protective sweeps” of properties where alleged narcotics trafficking is being conducted. Although dismissed in a footnote to the Brown opinion, exigency plus a protective sweep based on destruction of evidence were potential grounds for entry into 820 Line Street absent a warrant. Brown, at 69, fn 6. Criticism aside, Brown is grounded in state constitutional law and now affords protections to property rights of individuals with homes in less than stellar condition. In a city like Camden, where squalor and abandonment are around every corner, this re-assertion of the right to privacy within one’s home has value. It is also important in the suburbs as foreclosed properties creep into disrepair.

1 In an August 25, 2014 article in the Courier-Post, author Kevin C. Shelly makes reference to the joint “Vacant Property Survey,” a collaboration between the Camden Community Development Association and CamConnect. It is available at www.camconnect.org. There, along with the criteria and survey method are the findings.

CRIMINAL LAW“Trashy House Exception”

Continued from Page 7PUBLIC SECTOR • 2Cynthia L. Jentsch, Esq.Camden County Prosecutor’s Office25 North 5th StreetCamden, NJ 08103P: 856-225-8400

Robert M. Perry, Esq. Camden County Prosecutor’s Office25 North Fifth StreetCamden, NJ 08102P: 856-225-8525

ACTIVE • 6John M. Chomko, Esq.Law Office of John M. ChomkoStaffordshire Professional Center Bldg. D1307 White Horse RoadVoorhees, NJ 08043P: 856-772-3835

Jeremy J. Jackson, Esq.Rothman & Associates123 Washington StreetNewark, NJ 07102P: 201-469-7630

Michael C. KondrlaLa Van Law 11 East Main Street, 2nd FloorMoorestown, NJ 08057P: 856-235-4079

Justin L. Scott, Esq.2 Kelso Lane Cinnaminson, NJ 08077P: 856-533-0510

Gillian Terreri, Esq.Mattleman, Weinroth & Miller, P.C. 401 Route 70 East, Suite 100 Cherry Hill, NJ 08034P: 856-429-5507

Alfred J. Tumolo, III, Esq.Law Office of Morris Starkman1939 Route 70 East, Suite 210Cherry Hill, NJ 08003P: 856-424-7277

LAW STUDENTS • 1 Thomas WeakleySchool: New York LawNew Jersey Dept. of Labor1 John Fitch PlazaTrenton, NJ 08625P: 609-292-5462

Welcome new membersDecember 2014 – January 2015


To schedule your classified or display advertisingcall Kathy at 856.482.0620,

email [email protected] or fax copy to 856.482.0637Classifieds

OFFICE SPACECHERRY HILL, RT. 70, SOCIETY HILL OFFICE PARKPerfect law office, 1228 sq ft, reception area with stone flooring, 4 offices, available now . Also, a sublet available now for 700 sq ft (3 offices & portion of reception area) or the whole office after 5/1/15 which is 972 sq ft, (4 offices, storage area and reception area .) Call Harriet at Feinberg & McBurney Realty for floor plans and more info . 856-489-8887 .

MEETING SPACERent meeting space for depositions, interviews, presentations in Mercer County . Office, conference, training, meeting rooms by the hour, day, week or longer. Free WiFi, projectors, competitive rates . Ibis Venue Center, 3525 Quakerbridge Road, Suite 903, Hamilton, NJ 08619 . info@ibisVC .com www .ibisVC .com 609-588-6900 x103 . Mention ad for 25% off first visit .

1,000 TO 1,400 SQ. FT. +/- HADDONFIELD OFFICE SUITEFirst floor office space (divisible) situated in multi-tenant law building, located adjacent to Speed Line Station and few blocks from Kings Highway Downtown Business District . Meticulously maintained . Landlord occupied . Competitive rental rate . Landlord will custom fit-out office suite to suit tenant . Available immediately . Contact: Ben Sepielli @ Farrell & Knight Realty, Inc . 856-429-1770

SHARED USE – HADDONFIELDExecutive office with secretarial space (optional) in existing law suite (owner occupied), situated in prestigious professional building, adjacent to the Patco High Speed Line Station . Excellent on-site parking . Full shared use includes the use of a 21 x 14 conference room . Good networking possibilities . Available immediately . Call for other Haddonfield Shared Use locations – rental rates ranging from $550 to $850 monthly . Contact: Ben Sepielli @ Farrell & Knight Realty, Inc . 856-429-1770

CHERRY HILL OFFICE SUITE2 private offices, reception area and secretarial area along with private restroom and storage facility . Common use of Law Library and conference room . Offices are partially furnished and wired for all electronics . Off street parking . Kresson Road, close to Haddonfield and 295 . Call Jim at 856 .428 .9111

OFFICE FOR RENT – MARLTON$750 per month for a fully furnished private law office with reception area, kitchen and access to conference rooms (utilities, phone and Hi-speed Internet are included in the rent) . Contact Piper at 484 .875 .3000 or pdugan@americanexecutivecenters .com

REFERRALSREFERRALSAttorney with 25 years of Appellate experience invites referrals . Available for arbitrations & per-diem work . R . 1:40 Mediator . Richard C . Borton, Esq . www .bortonlaw .com 856 .428 .5825

TD Bank1, America’s Most Convenient Bank, is one of the 10 largest banks in the U.S.2, providing more than 8 million customers with a full range of retail, small business and commercial banking products and services at approximately 1,300 convenient locations throughout the Northeast, Mid-Atlantic, Metro DC, the Carolinas and Florida.

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TD Bank is a member of TD Bank Group and a subsidiary of The Toronto-Dominion

Bank of Toronto, Canada, a top 10 financial services company in North America4. The Toronto-Dominion Bank trades on the New York and Toronto stock exchanges under the ticker symbol “TD”. To learn more, visit tdbank.com.

In addition, TD Bank and its subsidiaries offer customized private banking and wealth management services through TD Wealth®, and vehicle financing and dealer commercial services through TD Auto Finance.

TD Bank is headquartered in Cherry Hill, NJ. To learn more, visit tdbank.com. Find TD Bank on Facebook at facebook.com/tdbank and on Twitter at twitter.com/tdbankus.

1TD Bank refers to the U.S. retail business segment of TD Bank Group. 2Based on total deposits as of December 30, 2013. Source: SNL Financial Largest Banks and Thrifts in the U.S. by total deposits. 3A “Business Day” is a non-federal holiday weekday. The end of a Business Day varies by Store, but it is no earlier than 8pm EST. Deposits may not be available next business day. Please refer to Business Deposit Account Agreement for complete details. Restrictions and fees may apply: check your account agreement for information. 4Based on assets as of January 31, 2014 (for Canadian peers) and March 31, 2014 (for U.S. peer).

About TD Bank, America’s Most Convenient Bank®

Put the power of TD Bank to work for you.To discuss what TD Bank can do for your firm, contact Marcin Bielecki at 1-856-580-7495 or [email protected].

For a free demo of TD Bank BusinessDirect, visit tdbank.com/businessdirect.


HolidayCocktail Party

OUT AND ABOUT

Ron Lieberman & Joe McCormick

…helping you experience financial security through informed decision making.

800-838-BIRE (2473) • www.bireswan.comRegistered representatives offer securities through Parkland Securities, LLC Member FINRA/SIPC

BIRE Financial Services is not affiliated with Parkland Securities, LLC

Stuart A. Leibowitz, PartnerDennis M. Freedman, Partner

Joel A. Goodhart, Managing Partner

4066 Butler PikePlymouth Meeting, PA 19462

209 Philadelphia AvenueEgg Harbor, NJ 08215

1702 Haddonfield-Berlin RoadCherry Hill, NJ 08003

1935 Center StreetNorthampton, PA 18067

Main Office Meeting Locations

Steve Neuner & Joanne VenturaKevin Haverty & Bill DeSantis

Jim Hamilton, Eric Feldhake & Adam GershLee Perlman, Rebecca Berger & Mike Berger

Anthony Granato & Rich Grungo


Accepting Referrals of Serious andCatastrophic Injury Cases Including:

Nursing Home, Medical Malpractice,Product Liability, Premises Liability,

Truck & Automobile Injuries

Recent case results include:• $300K Slip & Fall During Storm-Fractured Prosthetic Knee• $415K Nursing Home Neglect-Pressure Ulcer• $490K Truck Accident - Lumbar Fusion - Partial Disability• $990K Nursing Home & Assisted Living Facility Neglect-Multiple Pressure Ulcers• $400K Recovery-Pain & Suffering for Fatal Fire (Verdict of $375K plus $25K Settlement)• $500K Jury Verdict-Excess Over Remainder of $100K CSL Policy Against Allstate Insureds with Offer of Judgment for Policy-Herniated Discs• $500K Nursing Home/Hospital Neglect - Pressure Ulcers• $750K Nursing Home Neglect During Rehab Admission-Infected Pressure Ulcer-Surgery• $950K Nursing Home Neglect-Failure to Recognize and Act Upon Signs of Stroke

See other exhibits @ www.ballerinilaw.com

As Certified Civil Trial Attorneys, we have andwill pay one third referral fees to those attorneyswho give us the opportunity to serve their clients.

We RELENTLESSLY represent our clients using our valuable resources to help prove the significance ofOUR CLIENTS’ INJURIES!

HIP SPINE ANKLE ELBOWBRAIN ANEURYSM PRESSURE ULCER

Andrew A. BalleriniCertified Civil Trial AttorneyMillion Dollar Advocates Forum Member

Richard J. TalbotCertified Civil Trial Attorney

Million Dollar Advocates Forum MemberN.J.A.J. Board of Governors

A.A.J. Nursing Home Litigation Group Member

vol. 63, no. 7 • february 2015 ...high school: horace greeley high school, chappaqua, ny college:...

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