New Jersey Lawyers Blog

Published on: November 5, 2012

New Jersey’s Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act Adopts New Procedures for Fighting New Jersey Tenure Charges

The Teacher Effectiveness and Accountability for the Children of New Jersey (TEACNJ) Act was recently enacted by the New Jersey Legislature and signed by New Jersey Governor Chris Christie. The TEACHNJ Act creates drastic changes to the process for fighting tenure charges by New Jersey teachers and other public school “teaching staff members.” In short, the TEACHNJ Act eliminates the hearing process before the Commissioner of Education and places the decision in the hands of an arbitrator.

When a New Jersey “teaching staff member” achieves tenure, she receives protections that most other New Jersey employees do not. Tenured teaching staff members can be dismissed or reduced in compensation “during good behavior” only for “incapacity,” “inefficiency,” or “conduct unbecoming” a teaching staff member, or some other “just cause.” However, they can be laid off for budget reasons or enrollment losses at any time as long as their seniority is honored.

For the purposes of tenure, “teaching staff members” includes a wide range of employees, including: Assistant superintendents, teachers, principals (but not administrative principals), vice-principals, assistant principals, school nurses, athletic trainers, business administrators shared by more than one school district, and other employees requiring appropriate certificates.

Left unchanged are the initial procedures. Tenure charges are instituted by the local board of education. They are filed in writing with the board’s secretary together with a sworn statement of evidence. The employee is promptly given a copy and the opportunity to submit a written statement in response. The board will then consider the charges in closed session and decide by majority vote if the evidence supports probable cause for the charges, and whether the charges are sufficient to warrant dismissal or reduction in salary. If so, it then forwards the charges to the Commissioner of Education. If the board does not make a determination within 45 days, the charges are dismissed.
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Published on: October 26, 2012

Minimizing New Jersey Estate Taxes by Utilizing a Disclaimer Trust Provision in a Will

by Jennifer C. Meusel

New Jersey imposes an estate tax on assets passing to any beneficiary other than a surviving spouse. The New Jersey exemption amount is $675,000, meaning that a decedent whose estate exceeds $675,000, and whose assets are to be inherited by any individual other than a surviving spouse, is subject to New Jersey State estate tax. While both spouses are entitled to an exemption amount of $675,000, careful planning is required to take full advantage of both spouses’ exemption amount and shield $1,350,000 from taxes when it is passed to the next generation.

A disclaimer trust is an excellent vehicle for married couples to ensure that their heirs can maximize their exemptions. This trust can be included as a provision in both spouses’ wills. It provides that the trust will on be funded upon the death of first spouse if the surviving spouse executes and files a valid and proper disclaimer within nine months of the spouse’s death. It is important that the surviving spouse does not exercise any control over the assets being disclaimed after the decedent’s death. There are a number of factors to consider when deciding whether to disclaim assets and thereby fund the disclaimer trust, including the value of the estate, the age of the surviving spouse, the health of the surviving spouse and the current status of estate tax law. A disclaimer trust provision in a will is flexible and allows the surviving spouse to decide whether or not to fund the trust. However, if the decedent’s will does not contain the necessary provisions, the surviving spouse does not have the option to fund the trust and minimize future New Jersey estate taxes for the next generation.

The terms of the disclaimer trust are usually that the surviving spouse is entitled to all of the income from the trust during her lifetime, and the surviving spouse also has the right to access the trust principal for her health, education, support and maintenance. Distributions in excess of that are not automatic and require the agreement of the co-trustee. Typically, upon the surviving spouse’s death, the couple’s children become the trust beneficiaries.
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Published on: October 22, 2012

Fighting Traffic Tickets in New Jersey

by Boris Peyner

New Jersey’s traffic laws protect people and provide safety to motorists and pedestrians. Alleged violations of traffic laws are when people most often come into contact with the court system. McLaughlin & Nardi’s New Jersey attorneys regularly represent people fighting traffic tickets in New Jersey’s municipal courts.

Once you are issued a ticket you should never argue with a police officer. A police officer’s responsibility is to issue a summons, commonly referred to as a ticket, when the police officer believes that you committed a violation of the law. You should wait until your day in court when a judge or will decide if you did, in fact, violate the law. Your court date will typically be just days from the date you receive your summons.

The first scheduled court date is known as the arraignment. The arraignment is when the Court will inform you of the charges that have been filed against you and ask you how you plead. The typical answer is not guilty, guilty or no contest (typically in non-criminal matters.)

In most cases you should plead “not guilty” and consult with an experienced New Jersey attorney who can obtain discovery (i.e., evidence) which the state and the prosecutor will rely upon to prove that you are guilty (that you committed the offense you were charged with.)
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Published on: October 18, 2012

Help for New Jersey Residential Foreclosures: Do Not Lose Your Home – Help is Here!

by Boris Peyner

Families across New Jersey are facing difficulties paying their home mortgages and facing foreclosure. There are many steps that can be taken to avoid foreclosure and keep the home. The important thing is to do something.

Homeowners facing foreclosure should seek counsel from an experienced New Jersey real estate attorney who can ensure that your rights are protected. For example, before banks can foreclose on a home they must follow a step by step procedure. Banks must first send a notice to the mortgagee (the person who owes the money) and advise of the intent to foreclose. Foreclosure notices must allow at least thirty days to cure defaults and must have certain information which is required by law. For example, the notice must conspicuously identify the real estate which is the collateral for the loan, describe the default, and advise the homeowner of the right to cure. The foreclosures notices must also provide the amount necessary to cure as well as the name, address, and telephone number of the person to whom payment should be made. Banks which fail to provide this required notice will not be permitted to foreclose.

In New Jersey, banks are permitted to file a lawsuit to foreclose on a residential home thirty days after a homeowner has been served with a foreclosure notice. Time becomes critical once a homeowner is served with a complaint. Answers to complaints must be filed within thirty-five days after receipt of the summons and complaint. Failure to file an answer will result in default and the case will being deemed uncontested – in other words, the foreclosure will be treated as unopposed.

Banks may obtain a judgment for foreclosure very quickly once a matter is deemed uncontested. Banks are only required to mail a notice to the homeowner and advise that she has fourteen days to cure default and that upon entry of a foreclosure order the mortgagee will forever lose the right to cure the default.
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Published on: October 8, 2012

Accessing Online Accounts After the Account Holder’s Death

by Jennifer C. Meusel

NJ Assembly Bill A-2943 will ease access to Online Accounts after a persons death.

The New Jersey State Assembly has approved legislation allowing an executor or administrator of an estate to assume control of a person’s online accounts in the event of her death. If the bill is approved by Congress, the executor or administrator will be able to conduct, continue or terminate the social networking website, micro-blogging, and e-mail websites.

Currently the executor or administrator must research, navigate and wade through the protocols in place for each separate website. For example, Yahoo! Mail will not allow access to an executor or administrator, or anyone else, unless it is court ordered while G-mail and Hotmail will allow access upon providing proof that the executor or administration has been authorized to access these accounts.

Social media websites each have their own rules. Facebook will not allow access to a deceased person’s account. They do however, provide a memorial status for the deceased person’s account. They require a copy of the death certificate to close the account, but will not grant access.
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Published on: October 5, 2012

Transfer of a New Jersey Lottery License

by Jennifer C. Meusel

There are steps which must be followed in a timely manner to obtain a New Jersey Lottery License and have a smooth transition during the purchase of a business.

At least 45 days before closing, the seller of the New Jersey business must send a letter to the New Jersey Lottery district office. The addresses of the district offices can be found here. The letter must include information regarding the pending sale including the seller’s name, address, home phone number, cell phone number, and work phone number, as well as the buyer’s name, address, home phone number, work phones and cell phone number, and the anticipated closing date.

Upon receipt of that letter, a New Jersey lottery agent will contact the buyer and the seller, and they will be required to meet with the lottery representative . The buyer must bring the following to this meeting:

The Lottery Division will conduct a background check on all people listed on the application.
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Published on: September 25, 2012

New Jersey’s Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act Makes Significant Changes to Acquisition of Tenure

by Maurice W. McLaughlin

On August 6, 2012, New Jersey Governor Chris Christie signed the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act, which had been passed by both houses of the New Jersey Legislature. The TEACHNJ Act significantly changes how New Jersey teachers and other New Jersey public school “teaching staff members” acquire tenure.

A “teaching staff member” who obtains tenure can only be dismissed or have their compensation reduced “during good behavior” for “inefficiency, incapacity, or conduct unbecoming [ ] such a teaching staff member or other just cause.” It also provides procedural safeguards before they can be fired. (However, tenure does not prevent the school district or board of education from instituting layoffs – including laying off tenured teaching staff members – for reasons of economy or reduced enrollment, provided seniority rules are followed.)

“Teaching staff members” who may receive tenure include New Jersey public school teachers, of course, but also include these positions:

principal, other than administrative principal, assistant principal, vice-principal, assistant superintendent, and all school nurses, including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services, school athletic trainer and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect, and school business administrators shared by two or more school districts.

Published on: September 24, 2012

New Jersey Teacher Effectiveness and Accountability for the Children of New Jersey (TEACNJ) Act Requires Evaluations of “Effective” or “Highly Effective” For Acquisition of Tenure.

by Maurice W. McLaughlin

New Jersey recently enacted the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act. The TEACHNJ Act significantly changes the rules for the acquisition of tenure by New Jersey teachers and other New Jersey public school “teaching staff members.” The TEACHNJ Act changes the time period of service prior to acquiring tenure, sets up uniform evaluation requirements as a prerequisite to obtaining tenure, and drastically changes the process for challenging discipline against tenured teaching staff members.

Tenure for a “teaching staff member” means she can only be dismissed or reduced in compensation “during good behavior” for “inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause,” although tenured teaching staff members can still be laid off for economic reasons or declining enrollment provided that seniority is honored. It also provides tenured teaching staff members with procedural safeguards before they can have their compensation reduced or be fired.

“Teaching staff members” for tenure purposes include:

Teachers
Principals, other than administrative principal
Assistant principals
Vice-principals
Assistant superintendents
All school nurses, including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services
School athletic trainers
Such other employees as are in positions which require them to hold appropriate certificates
School business administrators shared by two or more school districts.

Schools are required to establish a school improvement panel and mentorship program for new teachers during their first year which the teacher must complete. The panel oversees the mentorship program. It must be “research-based” and enhance teacher knowledge and strategies in the core curriculum. It must pair first year teachers with effective, experienced teachers. The board must provide teaching staff members with ongoing professional development opportunities.
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Published on: September 17, 2012

New Jersey Division of Taxation Bulk Sales Requirements

by Jennifer C. Meusel

New Jersey’s bulk sale law was enacted by the New Jersey legislature in 1995 to protect purchasers of business assets. The purchaser of business assets is required to notify the New Jersey Division of Taxation of the transaction at least ten days before the sale by completing and filing a form C-9600 along with a copy of the contract for sale. The form C-9600 must be sent by certified mail to the State of New Jersey, Division of Taxation, Attention: Bulk Sales Section, P.O. Box 245, Trenton, NJ 08695-0245, or it can be sent by overnight mail to the State of New Jersey, Division of Taxation, 50 Barrack St, Trenton, NJ 08695, Attn: Bulk Sale Section. There is no fee for filing the form.

The New Jersey Division of Taxation then has ten business days to research and determine what amount of money must be held in escrow by the purchaser’s attorney at the closing. The state tax liabilities of the seller are then paid from the escrow. A purchaser, by complying with the Bulk Sale Law, ensures that they will not become responsible for the seller’s New Jersey tax liability. After the tax payments requested by the state are paid, the Division of Taxation will issue a tax clearance letter which authorizes the release of any monies remaining in escrow. Upon receipt of the tax clearance letter, the balance of the monies held in escrow can be released to the seller. If the Division fails to respond to the C-9600 within ten business days of receipt of same, the purchaser will not be held responsible for the seller’s state tax liabilities.

If the purchaser fails to notify the New Jersey Division of Taxation of a sale which is subject to the bulk sales notification requirements, then the purchaser becomes liable for the New Jersey State tax liabilities of the seller if the seller does not pay. If the purchaser fails to notify the state, the Division of Taxation can file judgment, levy and seize the purchaser’s assets. However, if the seller refuses to cooperate with the Division of Taxation, the Division will not penalize the purchaser for the seller’s refusal. While complying with this law is an added step in the purchase of a business, it is an excellent mechanism for protecting the purchaser. Purchasers of business assets should insist on compliance with the terms of the New Jersey Bulk Sales Law. It is an essential term of any contract for sale of business assets.
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Published on: September 12, 2012

How New Jersey Homeowners Can “Cram-Down” or “Strip-Off” Second Mortgages in Chapter 13 Bankruptcy

by Boris Peyner

cramdown New Jersey homeowners who file for chapter 13 bankruptcy protection may be able to cease paying their second mortgages if their homes are “underwater.”

When the amount that a homeowner owes on her mortgages is more than the home is worth it is considered “underwater.” Relief is available to New Jersey “underwater” homeowners through a Chapter 13 bankruptcy “cram-down” or “strip-off.” New Jersey homeowners can petition the United States Bankruptcy Court and request that their mortgages be cram-downed to the equity in the homes and the remainder of the loans stripped-off.

This means that homeowners who have multiple mortgages on their primary residence can take their mortgages and make them unsecured debt, thereby stripping-off all junior liens. This process applies to all subsequent mortgages as well. Therefore, second and third mortgages, and so on, would no longer operate as a lien on homes. Since it is then unsecured debt only a fraction will be repaid, and the remainder will be eliminated altogether.