Chasing Justice
“If you are chasing justice…then you are in the wrong arena.” David Heleniak, J.D.
Every day there are people who walk into a New Jersey courtroom seeking justice…whether it be in the legal sense or simply to feel a sense of validation that they were wronged. Not everyone emerges from the courtroom happy. There are winners and there are losers. There has to be. Not everyone can win.
At least half the people will be unhappy with the results of their day in court. That is not unexpected. But expectations are what gears people up for the big letdown…the expectations that a decision will be made based on truth, justice and the American way. The decisions, though, are being made by judges, men and women, human beings, just like you and me…educated but froth with emotions just like anyone else. Judges are not robots. They are not the old Batcomputer. With the Batcomputer, Batman and Robin would punch in a question and, after a few beeps and flashing lights, an answer would emerge. And regardless of how many times you put that question into the Batcomputer, the answer would always be the same. Two and two will always add up to four. It is not like that with judges. They are human beings and have “judicial discretion” on their side. So sometimes, regardless of what the law actually says, a judge will make a ruling in contradiction of that law, deciding a case strictly on his or her feelings on that particular day. Then it becomes their “interpretation” of the law. I have personally come to experience the utter frustration of the judicial process as a litigant, and now having worked in the legal field for a number of years, have had to calm down clients who believed they were railroaded after believing their cases were “slam dunks.” Slam dunks happen in basketball…there are no slam dunks in the courtroom.
Navigating the legal system is really a double-edged sword. It costs money to have an attorney… a lot of money. So if you can’t afford an attorney, you can’t seek justice. Well…not exactly. You can be a pro se litigant – representing yourself without the aid of an attorney. However, while there are some judges who give leeway to pro se litigants, a lot of judges will just chew you up and spit you out while you stand in their courtroom. Add to that the fact that you will most likely be dealing with the attorney for your opposition who will utilize every bullying tactic possible, approaching the line of unethical behavior but not stepping over it. So although you are guaranteed the right to self-representation, the odds are greatly stacked against you. But then if you spend the money on an attorney, it is money out of pocket to start. And there is no guarantee you will win. Therein lays the double-edged sword.
Russian Roulette is a potentially lethal game of chance in which a player places a single bullet in a six-cylinder revolver, spins the cylinder, places the muzzle against his head, and then pulls the trigger. There is a one in six chance you lose. Stepping into a courtroom is an altered form of Russian Roulette. Altered in the fact that, rather than a single bullet, there are five bullets in the six cylinders. The chances of NOT shooting yourself are greatly reduced to just one in six. Regardless of how many times I would try to explain this to friends and relatives, and even clients, it would just fall on deaf ears.
The fact is, regardless of the law, regardless of any agreements, contracts, morals, ethics, etc., you just never know what can happen. Just like you will find that in the medical field there are good doctors and bad doctors, so too can you find the same in the legal arena. There are good lawyers and bad lawyers. And there are good judges and bad judges. In both my personal dealings and my work as a paralegal I have had many opportunities to see judges in action. I came to appreciate, and get spoiled, by watching the Honorable David J. Issenman (now retired) in Union County. His respect for litigants, his unwavering fairness, and his demeanor – injected with his timely sense of humor – made me want to become a student of law. He made me appreciate it and have a passion for it. I have been inspired by others like Todd Mayo and Bradley Ferencz in Middlesex County, both of whom renewed my faith in fair play. But I have witnessed cases where judges have done the unbelievable, making decisions that went against case law, went against written agreements, and simply did not make sense.
“Family court is just the Wild West.” David Heleniak, J.D.
DF v. AB
Newlywed bride, AB, was the most recent case to experience the insensible. Prior to setting a date for their marriage the couple closely examined her Property Settlement Agreement (PSA) that set forth the alimony obligation of her ex-husband, DF. The two shared a 22-year marriage. He is five years younger than her. Although she worked part-time, she was basically a stay-at-home mom raising two children while he built a career with a large corporation that enabled him to earn about $175,000 annually. AB was entitled to $3,000 per month of permanent alimony. AB, not wanting to be tied to DF, settled for much less – $2,000 for a period of five years, enough time for her to get her college degree and prepare for the workforce. Unfortunately, the PSA was sloppily written. Many details commonly found in standard PSAs were omitted…and so was the word “rehabilitative.” Nevertheless, there was but one single opportunity for DF to modify or terminate his alimony obligation. Section C of the PSA specifically states that if “…either party suffers an involuntary and substantial change in circumstances to his or her severe detriment…” that party can request that the court make a modification. So it stands to reason that unless DF had suffered an involuntary and substantial change in circumstances to his severe detriment, he had no standing to request modification. There is no provision to terminate alimony for co-habitation or re-marriage. It also stands to reason that if the intent was for termination to take place other than for the circumstances listed in Section C, those provisions would have been listed with the same specification as those in Section C. The PSA makes no mention of remarriage.
AB got married on November 19. On December 4, AB received an email from an attorney stating that she represented DF. She accused AB of concealing the marriage from DF. She informed AB that DF would not be making his December payment. She demanded AB sign a consent order terminating the alimony, demanded that she reimburse DF for his November payment, and demanded she pay her legal fees. The legal fees amounted to 20 hours at $350 an hour, most of it for research. The research amounted to two exhibits presented that were LinkedIn profiles for AB and her new husband.
The fact is there was an agreement in place…the PSA. There was a court order from the year before enforcing his obligation due to his habitual tardiness in payment. If DF, in his own mind, believed that his support obligation should end, why did he take the steps to violate the Agreement and court order and hire an attorney? Why did he not 1) approach AB and get her position on the matter; 2) reach out to the court-appointed mediator which is dictated in the PSA; 3) file the appropriate motion to modify the agreement?
AB filed a motion to enforce litigant’s rights to compel DF to pay the support. DF’s attorney countered with a cross-motion to terminate the alimony based solely on N.J.S.A. 2A:34-25 which terminates alimony in the event of remarriage with the exception of rehabilitative and reimbursement alimony. The cross-motion contained 18 false or misleading undocumented statements made by DF. In her reply certification, AB presented the facts about the language in the PSA, the intent for the alimony to be rehabilitative, and documented proof that each and every one of the statements made in DF’s certification was a lie.
The motion hearing was heard by a freshman judge, Judge A, in Union County. Going in, the issue of the alimony was certainly open for interpretation because the PSA was so sloppily written. So, in reality, a plenary hearing would have been in order, with a chance to gather evidence on such an important issue. AB, standing alone as a pro se litigant, was ripped to shreds. Judge A made mincemeat of her from the get go. He ignored all of the arguments and evidence put forth by AB. He did not even consider scheduling a plenary hearing, terminating the alimony on the spot…and ordered her to reimburse DF for the majority of the November payment. When Judge A asked AB if she had anything else to say, her response was simply, “I would just like him to be held responsible for all of the lies he has told to this court.” Judge A said, “I read everything you gave me and it is so over the top.” He then proceeded to slam her for over $3,000 in legal fees.
All of the compelling reasoning and documentation was of little or no value. While AB is disappointed about the alimony, she is bewildered and angry that she put forth clear and convincing evidence, in black and white, to prove that the certification of DF was filled with nothing but misleading and completely false statements yet she is the one who got blasted and humiliated by a judge.
AK v. LG
I am no stranger to the miscarriage of justice in family court. I had been falsely accused of domestic violence by my ex-wife, LG. I had my entire life ripped apart because of the case, and because of the stigma of being accused. Judge B, of Middlesex County, stripped me of all of my rights as a father, as a human being, and altered everything in my life in order to conduct a best interests investigation into the custody of the children. There was no reason for the investigation because what did custody have to do with a domestic violence complaint that had nothing to do with the children? After two years, I was not only completely exonerated, but I was awarded full custody of my two children. Devastated financially, but I was given my children.
But within weeks of the granting of custody to me, Judge B ordered that I would have to pay LG alimony. Our PSA clearly stated that “both parties waive alimony now and in the future.” It could be said that it was an anti-Lepis clause. Lepis v. Lepis is the case law that permits a party to claim a drastic change in circumstances and request that the court alter a current agreement. So with wording to contrary in place, how is it possible, with that line in the agreement, that Judge B went against our PSA and handed her alimony? I was told by every attorney that he couldn’t. But he did. He reasoned that she had been living off the child support and, with no child support, she could not survive. But the child support is for the children, not for the ex-spouse. He gave me child support in the amount of $100 per week and gave her $175 per week in alimony. Not knowing how to appeal at that time, I let it go for a while. I was later able to get the obligations adjusted to $124 in child support to me and $125 in alimony to her…a net amount of $1 to her via wage garnishment by the probation department.
Alimony is tax-deductible and child support is not. It specifically said in the order that LG was to declare the full amount – not the net amount – of alimony every year on her income tax return and that I could write off the entire amount of alimony paid on my returns. Well…she didn’t. She did not report the alimony as income and, as a result, the Internal Revenue Service audited me for 2004 and 2005. The IRS grabbed $2,400 of my refund. I challenged the IRS and I was told I would, in fact, be given back my $2,400…when I produce my cancelled alimony checks. Well…I can’t produce my alimony checks because there are no alimony checks. It was basically a wash…I get child support…she gets alimony…there was minimal, if no actual exchange of funds.
This is where the miscarriage of justice takes place. Judge B ordered me to pay alimony when I was exempt from paying alimony by the PSA. He based his decision on her reliance on the lost child support when child support is for the children and not for the ex-spouse. Judge B not only ordered something that never should have been ordered in the first place, but he ordered something that was completely out of line with what is acceptable by IRS standards to boot. I was left with an obligation that I never should have had. And I was left with no way to substantiate my fulfilled obligation to the IRS which would then allow me the deduction I was entitled to. How was a judge able to do all of this? It is now 2013 and I still have not been able to convince the IRS to give me the $2,400 that was taken from me.
KL v. JL
JL came home from picking up milk and ice cream one night and was met by his wife, KL, at the door with a divorce complaint. The divorce was a bit contentious, mainly due to the lack of money in the marriage. JL believed that KL was going to attempt to skip town with the parties’ two daughters. KL repeatedly denied the allegations. But JL was adamant about his fears and he filed an Order to Show Cause in June 2009 to prevent KL from removing the children from the State of New Jersey. Judge C, in Monmouth County, found JL’s claims to be without substance and dismissed the action.
Then, in January 2010, KL suddenly discovered that she could not survive living in New Jersey, and that the only way she could possibly survive was living under her mother’s roof in Florida. And so KL filed an Order to Show Cause asking that the Court grant her the ability to relocate to Florida with the children. KL testified that she would be destitute if she would not be permitted to move to Florida and that the reason for her relocation to Florida was to live under the roof of her mother and so that her family could assist with the care of the children. Judge C, ignoring case law, permitted the KL to leave the State of New Jersey to specifically live under her mother’s roof in the State of Florida and to have the support of her family.
However, within 11 days of relocating to Florida, KL was NOT living under her mother’s roof. On the contrary, KL had her own place. According to her certification, KL’s mother suddenly came to the realization that she could not live with the grandchildren under her roof. KL’s family was NOT assisting with the children. Rather, there was a paid baby-sitter watching the children on a regular basis.
In Zwernemann v. Kenny, 236 N.J.Super. 37, 45, 563 A.2d 1158 (Ch.Div.1988), aff’d, 236 N.J.Super. 1, 563 A.2d 1139 (App.Div.1989); the court ruled against the mother who wanted to relocate to the State of Florida. In fact, in Zwernemann v. Kenny, the moving party was denied even though she had a substantial job offer and the non-custodial parent was offered extended visitation.
Certain factors are considered by a court in determining whether to allow a custodial parent to move a child out of state over the objections of the other parent. The first factor is the prospective advantages of the move in terms of its likely capacity for either maintaining or improving the general quality of life of both the custodial parent and the children. The second factor is the integrity of both the custodial parent’s motives in seeking to move and the noncustodial parent’s motives to restrain such a move (e.g., whether the custodial parent is motivated by a desire to defeat and frustrate the noncustodial parent’s visitation rights and remove himself or herself from the future visitation orders or whether the noncustodial parent is contesting the move mainly to impede the custodial parent’s plans to secure a financial advantage with respect to future support payments). The third factor is whether, under the facts of the individual case, a realistic and reasonable visitation schedule can be reached if the move is allowed.
In Levine v. Bacon, 297 N.J. Super. 224 (App. Div. 1997) the Appellate Division agreed with the trial court that a move to Florida would “be inimical to the child’s best interests and adversely affect defendant’s visitation rights.” The court emphasized “[t]he dramatic change in the amount and quality of time that defendant and child would be able to spend together,” concluding that it would “undoubtedly cause the child to suffer.”
Judge C ignored the case law and permitted KL to relocate with the children to Florida. JL, living 1,200 miles away, is now relegated to phone calls, SKYPE, and logging thousands of miles on JetBlue, the least expensive air travel. Since the children are so young, he has to fly down, pick them up, get back on a plane, and fly back to New Jersey…and then do the opposite to bring them home for each visitation. He works every day to pay nothing more than his child support obligation and his air fare to see his children…when it is clear that the court should never have permitted the relocation.
SK v. JK
A change in judges midstream can make the outcome of a case even wackier than the parties and circumstances involved. SK v. JK became so convoluted because both parties were being less than forthright, both intent on “beating the other into submission.” The big issue in question was the custody of the parties’ two sons. The older son had mental health issues and his behavior and actions had necessitated numerous calls to the local police. In reality, the situation had become dangerous for the mother as the teenage son had made numerous physical attacks on her. Following an egregious incident, the older son was taken by the police, brought for evaluation, and then placed in a residential facility.
But while the mother was in the hospital one day with a migraine headache following eye surgery, the father, took the opportunity to file an Order to Show Cause claiming that the mother was institutionalized and that the younger son’s life was in danger. That set the stage for a “tit for tat” that was just not warranted…but exacerbated by the father’s attorney.
Judge D, in Middlesex County, was the initial judge on the case. He was somehow able to weed through the nonsense, ignore the gamesmanship of the father’s attorney, and set the stage for evaluating the best interests of the children and providing them with a guardian ad litem. Although the investigation by the guardian moved slowly, Judge D kept things in check. The father’s attorney repeatedly asked for counsel fees and was repeatedly denied by Judge D. His last denial turned out to be his last order in the case as he transferred out of family court.
Judge E took over the case midstream and, as far as the mother was concerned, things went to “hell in a hand basket.” Everything changed…the mood of the case…the lack of control over the father’s actions which included unilaterally removing the older son from a mental health residential facility…and the tactics of the father’s attorney became ever more aggressive.
It also did not help the mother that she refused to show up for a deposition at the father’s attorney’s office and disappeared off the face of the earth for nine days…thereby just pissing off a judge.
Judge E issued an order granting full legal custody to the father without any caveats that were recommended by the guardian ad litem. In fact, the guardian’s report was not referenced at all and completely ignored. Then one month later, Judge E ordered that the mother pay counsel fees in the amount of $23,095 plus costs of $524.18, costs incurred by the father since the last order of Judge D, at the rate of $500 per month. Judge E cited that the mother “has not acted and advanced good faith positions. “ Judge E went on to say that “…She resisted. She litigated….And I would indicate that the good faith way that that’s resolved, is you settle the custody dispute. You — and then you – you file your motion for child….if the custody had been settled, since clearly, that in my mind, that was never a good faith position that she took.”
Judge E ignored the fact that the mother had entered into a consent order over a year earlier and that custody had already been transferred then. The only thing holding anything up was the father’s refusal to include the caveats as recommended by the court-appointed guardian ad litem.
Judge E issued an Order – retroactive – that the mother pay the father $194 per week, citing the child support guidelines. The worksheet used by Judge E ignored mandatory deductions included on the mother’s three case information statements and pay stubs. It also erroneously calculated the amount of overnights the mother shared with the younger son at 24, when, in fact, he spent a minimum of 75 overnights including every other weekend and alternate holidays. The calculation also took into account – took for granted – that the mother would not be having any visitation with the older son. This detail gave the father little or no incentive to encourage the older son to have visitation with his mother.
Judge E stated that he “started to become familiar with this case in August …And I was familiar with this case from that point on…” Under Judge D, the case was about the best interests of the children; under Judge E, it became a case about money and procedures of the attorneys.
It appears that Judge E did not recognize the merits of the case or the intent of Judge D’s decisions on the matters. Certainly, in making his decision, Judge E ignored the opinions and recommendations of the court-ordered, court-appointed guardian ad litem who clearly stated “…Although the Defendant sees the Plaintiff as being overly concerned and overzealous in her attempt to get what she perceives to be the appropriate help for the older son, I do not agree with the Defendant’s conclusions. The Plaintiff attempted to get professional help for the older son which he appeared to desperately need based upon his aggressive defiant behavior. The Defendant was not always cooperative.” Further stating, “The Defendant should have legal custody of the children with the caveat that safety nets be put in place.”
The mother should never have been hit with the exorbitant counsel fees levied against her by Judge E. Section 17-3(a) of 1-17 New Jersey Family Law § 17-3 shows that “in Darmanin v. Darmanin, 224 N.J. Super. 427, 431, 540 A.2d 913 (App. Div. 1988) the wife made a post-judgment application for increased child support that was denied without prejudice because she failed to make a prima facie showing of changed circumstances as required under Lepis v. Lepis 83 N.J. 139 (1980). The trial court granted the husband’s motion for counsel fees, stating that the application was not warranted and that the award of counsel fees was equitable because the husband was put to the expense of defending against the motion. The Appellate Division reversed, holding that counsel fees may not be assessed in a family action as a sanction for asserting an unsuccessful claim or raising an unsuccessful defense. It added that however “equitable” it may be to require an unsuccessful party to pay an adversary’s counsel fees, the practice is generally prohibited. Rather, it indicated that the three factors set forth in Williams v. Williams 59 N.J. 229, 281 A.2d 273 (1971) must be considered, namely, financial need by the party requesting the award, financial ability to pay by the party from whom the award is requested, and, where the first two factors have been established, good faith by the party requesting the fees in asserting the claim or raising the defense that incurred the fees. The Appellate Division in Darmanin stated that the trial court erred by awarding counsel fees on the basis of bona fides of the wife, the party against who the fees were assessed…The court in Darmanin added that the bad faith of a party in a family action may not be the basis for assessing fees against that party.
Judge E should never have been put in a position to make a decision or, better stated, alter the direction of a case. In Salch v. Salch, 1990, whereas the court determined that the original judge had been assigned elsewhere prior to the motion for counsel fees, the court held that the original trial judge should have presided over the motion because the matter was complicated and because the original judge had been substantially involved in the case. Thus, the matter was remanded to the original trial judge.
In its opinion, the Appellate Division opined, “In defense of the judge, he was a virtual stranger to this case, which was filed in 1987. From 1987 until the divorce was entered in 1989, another trial judge was in charge of the case….It is obvious he should have resolved the motion for counsel fees. Indeed, the motion should have been made directly to him. R. 1:6-2; R. 5:5-4. However, during the two months it took Mrs. Salch’s attorney to file the motion for counsel fees, the original trial judge was apparently transferred to a new assignment…The administrative considerations involved in the transfer should not have interfered with what was required in order to fairly and justly resolve the counsel fee issue – disposition by the judge who had the primary responsibility for the case during its pendency.”
While Judge D presided, the case had been about the best interests of the children. Judge D appointed a guardian ad litem and ordered a custody investigation. That investigation was completed but then ignored once Judge D was reassigned.
Judge D denied each and every request by the father for counsel fees as evidenced in his last order which again denied such a request.
When Judge D was reassigned to another court, Judge E, unfamiliar with the merits of the case, took over. Judge E ordered the mother to pay the father’s counsel fees from the last order of Judge D moving forward in the amount of $23,095 plus costs of $524.18, at the rate of $500 per month.
Judge D had ruled on the issue and denied the father’s request each time, yet the father continued to ask hoping that he would get a different response from a new judge, which he got.
Judge E reasoned that the mother was acting in bad faith and being litigious. Judge E admitted that he had only become familiar with the case in August, after Judge D was reassigned. It is clear that Judge E was not aware of the father’s constant bad faith, his filing of two frivolous motions, his malicious violation of a Consent Order.
An award of such magnitude – $23,619.18 – should not have been permitted to be ruled upon by a judge who had not been intimately familiar with the merits of the case. Under Judge D, the case was about the best interests of the children. That changed…when he was reassigned.
“It’s easy for a judge to presume that the powerful party has all of their ducks in a row.” David Heleniak, J.D.
J.P. Morgan Chase v. RBH
The RBH case was an interesting one because it was a microcosm and clearly typical of what was taking place as a result of the catastrophic mortgage banking situation. How is it that a court can simply grant the ability to initiate litigation…in this case foreclose on someone…when the moving party has not a shred of evidence that they even have the right to do so?
RBH had filed a motion to dismiss the initial foreclosure complaint and was denied in Hunterdon County by Judge F. Curiously, Judge F denied the motion to dismiss the complaint despite the fact that the plaintiff knowingly, willfully and purposefully moved against the defendant without possession of the signed document required to prove ownership and have standing in accordance with law regarding mortgage foreclosure complaints.
According to R. 4:64-1(b)(10), if the Plaintiff is not the original mortgagee or original nominee mortgagee, the Plaintiff needs to provide the names of the original mortgagee and a recital of all assignments in the chain of title.
In a New Jersey Supreme Court Order dated December 20, 2010, emergent amendments were made to Rules 1:5-6, 4:64-1 and 4:64-2. These amendments were made “in light of irregularities in the residential foreclosure practice as reported in sworn testimony before Congress and in depositions in New Jersey and other states which were presented in a submission by Legal Services of New Jersey.” The Order requires inclusion of a certification of diligent inquiry.
In In re Foreclosure Cases, 521 F.Supp.2d 650 (N.D.Ohio 2007) a federal district court judge dismissed 27 mortgage foreclosure cases because the plaintiffs had failed to submit evidence of standing at the time they filed the complaints. The court also held that “to demonstrate standing a mortgagee must demonstrate that it was the holder of the note and mortgage at the time the complaint is filed.”
In Bank of New York v. Raftogianis, A.2d, 2010 WL 5829240, (N.J.Super.Ch. 2010) the court held that: (1) the note and mortgage were not “separated” when those documents were first created, and thus, lender remained the owner of both the note and mortgage through date loan was scrutinized, and (2) there was insufficient evidence that trustee had physical possession of the original note as of the date of its complaint in foreclosure was filed, as required to assert standing.” The court dismissed the complaint the Plaintiff’s complaint.
To recover on a promissory note, the Plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the Plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note.
The Plaintiff claimed to be the owner of the mortgage of the property in question. However, RBH did not sign a note with JP Morgan Chase Bank. The Plaintiff never provided any evidence of ownership of the mortgage. The Plaintiff provided no documentation, if any, of acquisition of the original note and when they might have assumed ownership of such a note. So they never provided the note itself, nor did they provide a chain of title.
Regardless of all of this, Judge F denied RBH’s motion to dismiss and then denied his motion for reconsideration based on the court’s failure to realize the fraudulent actions taken by the mortgage firms in regard to record-keeping and, again, the failure on the part of the Plaintiff to provide the appropriate documentation for the loan in question.
Dr. DM v. EK
There are times when a judge makes a decision that just makes you scratch your head. My son, Eddie, was being pursued by the infamous collection firm, Pressler and Pressler, LLC, widely known for their bullying tactics and their constant circumvention of protocol and the law. They have had to settle a number of claims against them, yet they are still permitted to get away with a lot of nonsense. In this case, they decided to go after Eddie for a dentist bill that I was paying. The bill was originally for $2,500 and I was paying it off at $100 per month…getting it down to $900. Dr. DM’s office apparently had received notice that I had declared bankruptcy. The billing statements then began to come from Pressler and Pressler, along with harassing phone calls.
Unbeknownst to me, Pressler had been sending Eddie notices. He had been in an auto accident so he assumed that the notices were the same attorney advertisements we were getting for the accident. He threw the notices in the garbage. But while that was happening, Pressler got a default judgment against Eddie, and secured a lien on his checking account, which only had $25 in it. Pressler was able to obtain the judgment and the lien because they never provided proper service. They only sent notices by regular mail. So nothing was signed for…and no attempt was made to conduct proper service.
The key here, though, is that Eddie had no responsibility in the matter. While it is true, Eddie was the patient, Eddie never signed anything. I signed the Authorization/Responsibility Statement, thereby entering into a contract with the provider.
Eddie filed a motion to vacate the default judgment based on wrongful prosecution. I knew we were in trouble right away when we appeared for the hearing. There was a retired judge, Judge G, sitting in for the presiding judge. Eddie was appearing pro se and I was in attendance to testify that I was the responsible party for the bill in question. The motion was denied by Judge G at a hearing on June 30, 2010. Eddie’s testimony was not permitted and neither was my appearance. The Pressler attorney admitted on the record that, “His father did agree to be the guarantor.” Judge G ignored the fact that it was admitted on the record that Eddie was not the guarantor and, instead, stated on the record, “But you have to have good teeth…” and further went on to say that I should “…continue paying $100 a month and it’ll (the judgment) go away by itself in a year.”
Eddie then filed a motion for reconsideration which was also heard by Judge G on September 15, 2010. This time Eddie brought an attorney, David Heleniak of O’Donnell, McCord P.C. in Morristown. Mr. Heleniak pleaded with Judge G that the Pressler had sued the wrong party, the Plaintiff had refused to provide the signed contract with my signature, and that Eddie was being unfairly impacted by the negative credit reporting and not able to procure student loans. Judge G denied the motion for reconsideration and stated on the record regarding his inability to get a student loan, “Yeah, which is a good idea. Borrow it from the father instead of the government.”
Look at it this way…a father walks into a retail establishment…Target, for example…and purchases his son a t-shirt. The father pays for the t-shirt with his Target credit card. The father does not pay the credit card bill and Target wants its money. Can Target go after the son because he is the one wearing the t-shirt? No, because the son is not the one who is legally responsible for the payment. The son did not use his credit card. It is the father who contracted with Target to pay for the merchandise acquired.
According to 30 NJPRAC § 25.20 as to legal actions by debt collectors—15 U.S.C.A. § 1692i provides that a debt collector only has standing against a consumer “in which such consumer signed the contract sued upon.” The Fair Debt Collections Practices Act provides “in pertinent part that a debt collector who brings an action against a consumer on a debt due under a contract must do so “only in the judicial district or similar legal entity” where the “consumer signed the contract sued upon” or where the “consumer resides at the commencement of the action.” 15 U.S.C.A. § 1692i(a)(2)(A) and (B).”
Eddie did not sign the contract. The Pressler attorney admitted that on the record. However, Judge G ignored that fact. He ignored the Unites States Code and the Fair Debt Collections Act and decided that the most important thing was “to have good teeth.”
And maybe that is true. Because with good teeth, you can have a good smile.
