December 22, 2011 by Carl G. Archer, Esq..

I talk to people all the time about legal issues, and a few weeks back I asked our readers on our Facebook page if there were any issues they were interested in seeing discussed on this blog. As expected, several of the readers stepped up to the plate. One reader asked me to do a quick discussion of cell phone contracts. Before I get started on this subject, just a quick note: this, just as much as the other posts, is not legal advice. In fact, a lot of consumer legal subjects don’t reach the realm of “legal advice.” A little practical thought, and understanding plain language and the ways of big corporations, will go a lot farther than any statute I can throw at you.

Cell phone contracts (not the month to month variety) all have a few things in common. They are usually 2 years long, and they usually have various fees and charges for data, minutes, and other features. They also have a big cancellation fee, usually upwards of $300, if you try to get out of the contract before the end. This isn’t usually a problem, until carriers try to raise some of the miscellaneous fees in the contract. In that case, how do carriers get away with it, and how can you fight back?

Typically with these contracts you have the right to cancel without a termination fee when there has been a “material change” to a contract. It’s not entirely clear what that means, but a substantial increase in a fee for a service such as text messaging might well qualify. In any case, it’s certainly something you can bring up when calling customer service in an attempt to get out of a contract. If you threaten to cancel, carriers will often grant some pretty substantial concessions on your monthly bill. You may not get the original increases rolled back, but maybe you can get some more minutes or text messages. Just be aware that if the carrier refuses to budge on your argument, and you do cancel, they will charge you the big termination fee. How can you combat that fee? That is a subject for another column.

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December 20, 2011 by Carl G. Archer, Esq..

This is part of a series of posts, published on Tuesdays, regarding Medicaid and elder law topics of general interest in New Jersey.

“Medicaid” is an entitlement program (meaning the government gives it away to people). It is, however, not a “social insurance” program in the way that Social Security and Medicare are. Social Security are automatically available to you once you reach a certain age, and there are no additional requirements. You also have to pay in to those programs through automatic deductions from your paycheck.

Medicaid on the other hand is a program funded through both the federal and state governments that allows for health insurance, medical care, and cash payments in some cases. However, in order to qualify for Medicaid, a person must meet specific financial and/or medical standards. The programs cost the state government a lot of money, and so the state’s guidelines are strict. Each county’s Board of Social Services (or County Welfare Agency) administers these guidelines very carefully, although sometimes there is variation in some of the marginal issues depending on which county you go to.

When this blog discusses “Medicaid” in an elder law context, though, what is mainly being referred to is something called the “Medicaid Only” or “Medically Needy” programs. They mean that an applicant is only looking for the government to pay for the cost of care, and not to provide cash or other benefits (food stamps or the like).  Each of those programs have different asset limits but they are certainly lower than the assets most seniors currently have saved for retirement.

In short: If you see the word “Medicaid” used without reference to assisted living or skilled nursing facilities, some of the information presented there might not be accurate for your particular case.

Posted in Healthcare, Elder Law | Comments Off

December 13, 2011 by Carl G. Archer, Esq..

This article was featured in a recent issue of the Mercer County Woman. It was written by Brian A. Mills, a partner with the firm.

A recent Court decision has extended the reach of New Jersey’s Consumer Fraud Act,
(the “CFA”) through the corporate shield and into the pockets of the individual owners and
employees of the company with whom a consumer has a contract. In the wake of this important decision, the corporate or LLC structure alone is insufficient to protect business owners and employees from personal exposure for business liabilities arising under the CFA.

The case Allen v. V and A Brothers, Inc., 414 N.J.Super. 152 (App.Div 2010), was brought
by homeowners against a landscape contracting corporation, its sole individual shareholder
and two of its employees alleging breach of contract and consumer fraud in connection with
the construction of a retaining wall on their home. In holding the three individuals liable
for damages in excess of $600,000, the Court interpreted the Consumer Fraud Act to permit
the imposition of damages against the individual owner and employees of a company even
though the contract was with a corporation and even though no individual was deemed to have
committed any wrong “affirmative act.” The individuals were deemed personally liable for the
damages by virtue of the company’s failure to adhere to certain “technical requirements” under
the CFA. The Court stated that it is not necessary to pierce the corporate veil in order to impose personal liability.

The CFA was adopted in 1960 as remedial legislation to be liberally construed in favor of
consumers to punish “unconscionable commercial practices.” In short, the consumer is entitled
to the benefit of every doubt whenever a potential CFA claim or issue arises. The act is intended to “increase the attractiveness of consumer actions to attorneys” by allowing a consumer to recover damages equal to 300% of their actual losses plus attorney fees in prosecuting the case. In essence, the legislation removes the cost-prohibitive barrier to bringing a lawsuit against a business where the damages are trivial. Lawyers for consumers are likely to bring small cases knowing the Court will force the defendant to foot the bill for the plaintiff’s lawsuit. Moreover, damages awarded under the CFA are not covered by insurance.

Further, the New Jersey Division of Consumer Affairs has enacted a number of regulations
elaborating on the CFA obligations of providers of certain types of goods and services. Taken
together, the CFA statutes and regulations bring almost any business that does business
with consumers within the sights of the CFA and its remedial objectives designed to punish
businesses for actions deemed unconscionable.

Most significantly, what is deemed an unconscionable business practice under the CFA and
its regulations may not be obvious to business owners. For instance, the regulations enacted
pursuant to the CFA make special provision and impose specific obligations on the following
types of businesses- mail order businesses, retailers of meats, furniture and household furnishing retailers, internet dating services, prepaid calling cards, home appliance repair services, sellers of animals, home improvement contractors, food and dining establishments, automobile and watercraft dealers and repair facilities, tire retailers, toy stores, health clubs, towing companies, realtors, ticket sales, and sellers of motorized wheelchairs. Seemingly benign things such as failing to provide a starting and ending date for a construction project, certain disclosures or insurance information on a construction contract are “technical violations” of the CFA and deemed unconscionable business practices.

In addition, duties are imposed on all retailers with respect to refund policy, marketing by
facsimile, disclosure of unit pricing and advertising generally.

Benjamin Franklin may have been speaking directly to consumer businesses in New Jersey
when he said “an ounce of prevention is worth a pound of cure.” Preventative measures are the key to avoiding exposure to significant liability under the CFA which, under the Court’s recent decision, now extends to the owners and employees of the business as well.

Accordingly, it is now more important than ever for businesses that transact with consumers to
take steps to ensure it does not run afoul of the CFA. Business owners and managers should
consult with an attorney familiar with the requirements of the CFA to conduct a CFA audit and
review contracts, advertising and business practices for potential areas of exposure.

And CFA considerations aside, regular review of a business’ terms and conditions is an
essential exercise. What could be more important that defining the scope and parameters of the relationship between a business and its customers? Ensuring the customer’s expectations are consistent with the business’ offer is one of the most important keys of business and is also a way to avoid CFA claims.

Maselli Warren, P.C. has taken the Allen v. V and A Brothers, Inc, case to the New Jersey
Supreme Court on behalf of the individuals deemed liable for the company’s CFA violations. A
successful appeal would be a tremendous and important victory for business in New Jersey.

As always, please feel free to leave comments or questions, and also check out our Facebook and Twitter feeds.

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December 8, 2011 by Carl G. Archer, Esq..

This article was featured in a recent issue of the Mercer County Woman. It was written by Carl G. Archer, an attorney with the firm.

Most of us manage our debts well enough to scrape by. Nowadays, though, it is easy for life to become unbalanced in a hurry. Bad things often happen to good people. Between pay cuts, unemployment, divorce, and the costs of unexpected problems, there is plenty out there to bring anyone financial problems in a hurry. Credit card companies, and others, charging 20 percent interest or more only make the problem worse. These and other financial crises leave normal, honest people worried, ashamed, and in need of a fresh start.

Given these burdens, it can be a relief to know that federal bankruptcy law grants relief to people in financial stress. It can relieve a person of the obligation to pay many debts, including credit cards and medical bills. And yet, given the opportunity under federal law to make a clean start of it, many people still choose to bear this cross alone. Many people often hesitate because they wonder how they can justify walking away from their debts, which they agreed to pay, even if the law allows it.

No one should be racked with guilt over this decision. Every major religion and most industrialized countries support bankruptcy as a mechanism to relieve an overburdened debtor. Any person who has ever faced such hardship in their lives knows that bankruptcy relief may prevent a family from being torn apart over financial stress. Businesses know that bankruptcy exists, and that they may not get repaid by someone who files for bankruptcy. They take that risk into consideration when setting interest rates and prices for their products.

This country has been helping people to improve their lives through a “second chance” for a long time. Bankruptcy law had its American origins in the Constitution itself. Millions of Europeans immigrated here at the turn of the 20th century and saw the Statue of Liberty as a symbol of new opportunity for their families. They were the embodiment of poet Emma Lazarus’s words “Give me your tired, your poor/Your huddled masses yearning to breathe free” which appear on a plaque inside the Statue of Liberty. The concept of a “second chance” has a universal appeal for a reason – everyone needs one at some point during their lives.

Bankruptcy is provided for in the law because it is better to let people start over than it would be for them to struggle for the rest of their lives to pay back debts they cannot handle. Those struggles affect not just a person’s financial health, but their mental health and their relationships with family, friends, and other people. Filing bankruptcy is an important decision. If you feel overwhelmed by debt, consider filing a bankruptcy for relief from your financial and mental pressures.

As always, please feel free to leave comments or questions, and also check out our Facebook and Twitter feeds.

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December 6, 2011 by Carl G. Archer, Esq..

This article was featured in the most recent issue of the Mercer County Woman. It was written by two attorneys with our firm- Patricia Agoes and Kimberly Pelkey Sdeo.

Maggie meets Mike on a dating website, they instantly connect and ten months after their first date, they welcome baby Maxwell. Maggie cannot bear to leave Maxwell, but returns to work part-time and sends Maxwell to day care. Shortly after, Mike breaks up with Maggie. Mike and Maggie reluctantly accept the relationship is over. Mike moves out and visits the baby every other weekend.Not wanting to deal with lawyers and the Courts, Mike agrees to pay one-half the day care costs, but doesn’t think he should pay child support. Mike works a mechanic making $1,200 a week gross.

Soon, Mike stops paying for one-half of Maxwell’s day care. Maggie returns to work full-time as a nurse earning $900.00 gross per week, but it’s hardly enough to keep up with the monthly day care bill of $1,000.

Mike and Maggie argue about money every time they see each other and it upsets Maxwell. Maggie runs into a friend and tells her how hard it is to be a single mom with no support. Maggie’s friend gives her the name of a local family law attorney to call. Her friend tells her that a consultation doesn’t cost too much and she deserves to know her rights and options.

Maggie schedules an appointment with the attorney, who sat with her for over an hour. Maggie learned that child support is based upon the New Jersey Child Support Guidelines. The Guidelines approximate the costs to raise children based upon the income of each parent. The Guidelines include housing, clothing, food and activity costs. Even medical insurance premiums and child care can be included as additional child support.

A request must be made to the Court asking for support. Once support is established, the County Probation Department can collect directly from the parent’s paycheck. If payments stop, Probation can enforce child support in Court, take tax refunds and even suspend a driver’s license. Child support cannot be eliminated through bankruptcy. Regular income, side income and overtime are used to determine child support. Income can be imputed if a parent does not work. Job loss does not automatically decrease child support and an increase in income can be a basis for a recalculation of child support.

Maggie learns that the Guidelines calculate child support to be $260 per week, including day care. Maggie’s attorney files the request with the Court to establish the child support obligation. A week before the court date, everything gets resolved by exchanging financial information and using the Guidelines without ever stepping foot in the courthouse. Attorneys for Mike and Maggie prepare a written agreement and submit the Court Order to establish the child support obligation and create the Probation account to collect the child support.

By seeking legal advice, both Mike and Maggie know the Court has established a fair amount for Maxwell’s support.

Are you having trouble with child support matters? Do you need to establish child support? Contact us to schedule an appointment today to discuss your rights and options.

As always, please feel free to leave comments or questions, and also check out our Facebook and Twitter feeds.

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December 1, 2011 by Carl G. Archer, Esq..

The federal government provides only the bare minimum guidance on its programs, and leaves the implementation of the programs, along with most of the eligibility requirements, to the individual states. The states in turn put together laws and regulations to interpret the federal laws and lay out the groundwork for the application process. The actual interpretation of state and federal laws and codes is done mostly by bureaucrats at the county level. If there is a dispute, and an individual appeals an adverse ruling, only then does an administrative law judge get involved.

Medicaid planning and application for seniors isn’t like traditional legal and litigation work. It doesn’t help a lawyer very much to “know the judge.” It is much more important to know the officials on the county level who interpret the rules, and know what they will allow and what they will reject. That kind of ground-level knowledge will make planning much less risky and much more efficient, while ensuring that your loved one receives uninterrupted care with minimal financial risk. If you have any questions about county rules and interpretations, or you just want to know how to get started, please feel free to call Carl today at 609-452-8411 for a free phone consultation.

As always, please feel free to leave comments or questions, and also check out our Facebook and Twitter feeds.

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November 30, 2011 by Carl G. Archer, Esq..

People ask me all the time what an elder law attorney does. An elder law attorney does not have a specific practice area, but a demographic. I serve older individuals with any legal need they have. I happen to concentrate my practice on Medicaid planning, but I handle a wide variety of issues common to that population, including guardianships, trusts and estate planning, bankruptcy and debt settlement, and consumer litigation. My goal is to act as a one-stop shop for any of a senior’s legal needs.

Here’s a little secret about the way I live my life and the way I practice law: I am not interested in the traditional roles of “lawyer” and “client.” The point of becoming an elder law attorney and catering to a demographic is that I am not trying to be somebody’s lawyer on one issue, only to be forgotten as soon as the matter is over. My role is as an advisor and a confidante, someone who can be trusted to analyze anything remotely important in the lives of seniors and advise accordingly. Our lives nowadays are far too dynamic to pretend that we have a full grasp on everything going on. You leave the legal issues to me, leaving you the time to enjoy your family, your daily life, your hobbies, and your volunteer activities.

As always, please feel free to leave comments or questions, and also check out our Facebook and Twitter feeds.

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November 29, 2011 by Carl G. Archer, Esq..

Thank you for visiting Maselli Warren’s blog. We are re-launching the blog and we are glad that you are a part of our readership. We plan to post two or three times a week on issues of general legal significance. We’ll offer tips and pointers, as well as slightly longer pieces about specific areas of law. The blog is administered by Carl G. Archer, an attorney at our firm, but check back from time to time to see articles written by many of our attorneys and staff.

We’re going to keep the comments section of the blog open, and you can feel free to use that or our email, Facebook, or Twitter to give us feedback on what you find interesting, any questions you might have, or any suggestions for something you’d like to see us write about.

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July 29, 2009 by Peter B. Paris, Esq.

(Printed in The Trenton Times Op-Ed Section, July 27, 2009)

As a former big-city police officer, a former police misconduct investigator, a bi-racial African-American, and as an attorney who defends both police officers and the criminally accused,  I have a unique perspective on the touchy subject of  “Racial Profiling,” an issue which has recently been debated in the Times editorial pages by Ewing Attorney Donald Roscoe Brown and Lawrence Township Police Chief Daniel Posluzny.

Since any public discussion of racial profiling usually ends in a predictable stalemate, with familiar arguments and little new insight, I will make an effort to advance this discussion.  Like Mr. Brown, I feel I would “be doing a gross disservice by not writing of my personal experience.”

For three years in the mid 1990s, I served as a police officer in a high-crime neighborhood in Boston.  I was a “working cop,” so I stopped many cars and people for many different reasons.  Some people got arrested, but most did not.  While sometimes race was a factor in my decisions to stop someone, it was never the only factor.

I worked in a predominately black neighborhood with known areas of illegal drug dealing.  If I saw a young white male drive up to a young man late at night on a known drug corner, stop momentarily, and make an exchange, I might stop the driver.  Race would be a factor in my decision, but I think justifiably so.  Other genetic characteristics, such as age and gender, also played a role in my decisions.

Although race played no role in most of my decisions, I was frequently accused of racial profiling.  Of course I knew such accusations were false, but I also knew that I could never really prove my true intentions to the satisfaction of my accusers.  As an eager and idealistic rookie, I would try to explain myself, and I made it a point to be excessively polite.  But nothing worked.

Eventually, I realized that it wasn’t about me at all.  Ironically, I was the one being stereotyped.  It didn’t matter that I am not a racist.  Certain people with pre-formed beliefs about police officers were going to accuse me of racial profiling no matter what the facts were.

The essence of the job of a police officer is to make judgments – dozens on any given day.  Those judgments are informed by the circumstances at hand, common sense, academy and field training, but mostly experience.  For cops on the beat, it is a challenge to determine the truth of any given situation.  Sometimes, police officers draw mistaken conclusions from their observations.  Since no human being is perfect – and yes, cops are human beings – mistakes and misperceptions are inevitable.

One response to this inevitability is to grant police officers the benefit of the doubt with the understanding that such mistakes are minimized through training, supervision, judicial scrutiny, and experience.  Police officers, prosecutors, many judges, and a large portion of the general public tend to give police the benefit of the doubt and presume that they act in good faith, unless credible evidence shows otherwise.

A contrary response to the inevitability of police mistakes is to use them to forward a personal or political agenda.  Espoused by Al Sharpton, the ACLU, the news media, and some people who have been stopped by police, this agenda-based approach posits police mistakes, combined with historical inequities, as conclusive evidence of racial profiling.  Conveniently, the actual existence of racial profiling in any given case can rarely be conclusively proved or disproved because the evidence lies solely in a police officer’s mind.  The perfect circularity of this argument makes it an effective fund-raising tool, political rallying cry, and a profitable source of headlines.  But unfortunately, the truth becomes secondary.

Which brings me to Mr. Brown.  In his opinion article, “Driving While Black in Lawrence Township,”  (June 18) Mr. Brown accuses a Lawrence Police Officer of pulling him over because he is black.  He was wearing a suit, and was otherwise driving safely.  The officer told him he thought he was not wearing his seatbelt.  When he realized the seat belt was engaged, he sent Mr. Brown on his way.  By Mr. Brown’s own description, the officer was “very respectful and polite,” and the stop lasted about 30 seconds.  In his July 10 response article. “Lawrence Township Policing Is Equitable and Fair,” Chief Posluzny informs us that the stop occurred during the nationwide “Click it or Ticket” campaign in which police all over the country were instructed to ticket drivers not wearing seat belts.

Mr. Brown concluded that “but for my blackness, I probably would not have been stopped.”  The irony is that Mr. Brown drew conclusions based on his stereotypes of police officers.  Without any factual basis, Mr. Brown assumes that “perhaps [the officer] wasn’t aware of some subconscious views he might possess regarding the unwarranted belief that blacks, in general, are predisposed to committing crimes and unlawfully operating motor vehicles.”  It’s disappointing that an intelligent and accomplished person like Mr. Brown would make such a serious accusation based on nothing more than his own stereotype that white police officers harbor “subconscious” racist views that influence their professional decisions.  But, I wonder whose subconscious is influencing whom.

It would be foolish for me to argue that there are no racist cops.  But, it is equally foolish to accuse a police officer of one of the most serious offenses in the profession based on nothing more than a stereotype.

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July 27, 2009 by admin.

By Brian Mills, Esquire

Commercial Real Estate Brokers received some assistance from the New Jersey Supreme Court protecting their right to lease renewal commissions following a sale of the property for which the Broker had a listing agreement. This is an important decision because following a sale, Brokers no longer have privity, a legal prerequisite to enforcing a contract right, with the owner. The new decision relaxes the privity requirement and provides direction for Brokers who wish to protect their right to the valuable income provided by renewal commissions.

This decision, Pagano Company v. 48 South Franklin Turnpike, LLC, 198 N.J. 107 (2009), softened the prior ruling on the issue (VRG Corp. v. GKN Realty Corp. 135 N.J. 539 ((1994)) which gave buyers of leased properties a clear path to avoiding responsibility for commissions after purchasing a property.

The VRG court deemed the obligation to pay renewal commissions “personal” meaning it does not “run with the land” the same way an undischarged mortgage would. As such, buyers are not responsible for renewal commissions absent an “affirmative assumption” of the obligation.

The Pagano ruling did not expressly reverse VRG, rather it broadened the circumstances under which a purchaser is said to have “affirmatively assumed” the commission. Accordingly, it is incumbent upon brokers to understand the ruling in order to position themselves favorably with respect to this important issue.

The Pagano Court relied on a provision in the listing agreement stating it is “binding on successors and assigns” coupled with express references to the listing agreement in the leases, sufficient to find the buyer “affirmatively assumed” the responsibility to pay renewal commissions– even though the buyer never provided with the listing agreement.

The ruling is limited however, providing “it would be grossly onerous and unfair to hold that in all contracts, a buyer impliedly agrees with the broker that he will pay the commission” and leaves the door wide open to future litigation of this issue. Attorneys will certainly use the Court’s rationale to fashion their transactions in such a way to avoid responsibility for the very benefit the Court was trying to protect.

Brokers can hope the next ruling will follow the reasoning in another case where a plaintiff attempted to deny a broker his commission on the grounds that it is a “personal” obligation and not tied to the land:

1If plaintiffs are correct in arguing that the commission is not [due and payable] then the following anomalous result will occur: the mortgage and judgment creditors will be fully satisfied; the sellers will be freed of their responsibility to pay those debts and the [broker]… will receive nothing… [T]hat result strikes one’s conscience as inequitable. 1Cohen v. Estate of Sheridan, 218 N.J.Super. 565, (N.J.Super.Ch.,1987).

To be clear, no decision has ruled a Broker is not entitled to renewal commissions; only that the new owner is not responsible to pay the seller’s broker. With Pagano as a precedent for protecting Brokers, perhaps if presented with a case for commissions against a seller that no longer owns the property, the Court will rule that of the three potential ways to resolve this issue: (1) the seller pays renewal commission on a property it does not own; (2) the broker is denied compensation it earned because of something totally beyond its control; or (3) the buyer pays commissions on lease renewals for which it receives rents, it is most fair to hold the buyer responsible unless the seller “affirmatively assumes” the obligation.

For the time being, however, because “affirmative assumption” is almost completely beyond the Broker’s control, Brokers should consider requesting permission from their clients to record the commission agreement against the property the same way a lender records its mortgage. This would absolutely ensure renewal commissions become the responsibility of the buyer. The landlord may agree because it unambiguously relieves it of responsibility for renewal commissions following a sale of the property. If an owner refuses to permit recording of the listing agreement, Brokers should, at a minimum, be sure their listing agreements are expressly “binding on successors and assigns” and if possible, should seek to either be identified as a broker in the lease or, preferably, have the listing agreement referenced in the lease.

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