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By Mario A. Serra, Jr. & Robert E. Smithson, Jr., Fein Such Kahn & Shepard
Municipal court violations have become a more common occurrence for chancery practitioners over the past couple of years. Until recently, handling matters in these courts may have been restricted to defending a traffic ticket for an acquaintance, but the explosion of foreclosures in the State of New Jersey has made municipal property code violation hearings far more common.
In the State of New Jersey, violations of municipal ordinances are quasi-criminal in nature. What makes practice in this area difficult is the lack of standardization between courts in different municipalities.
Once a summons for a property code violation has been received, it is important to determine if it has been issued to the correct party. New Jersey state law only places an obligation on lenders in possession to secure and maintain a property if it is vacant and abandoned. If the property is still occupied by the owner, then he or she is the correct party. In this situation the lender is entitled to be dismissed from the action. A more common and more onerous situation is where code enforcement has issued the summons naming an agent or employee of the lender as the defendant. If this occurs, it must be addressed immediately, as the named individual, regardless of their actual involvement with the property, is subject to very real consequences such as arrest, or the loss of their driving privileges, if the summons is not responded to in a timely manner. In such cases, the defendant will need to be substituted as quickly as is possible, and the code enforcement officer needs to be informed that the proper defendant is the corporate entity with the obligation to secure and maintain the property - not its agents or employees.
The lender’s property preservation department should then be contacted and instructed to address the violations as quickly as is possible. If violations are abated in a timely manner, it will likely result in reduced fines, if not an outright dismissal of the summons. It is critical to follow up on the abatement and obtain photographic evidence that it was completed.
A letter of representation should be submitted to the court prior to attending the hearing. This letter should identify the correct defendant, if not done so on the summons, and should also delineate the scope of representation in the matter.
Negotiations with the code enforcement officer and prosecutor can be rather dicey. While many prosecutors and code enforcement officers are simply looking to have property issues addressed, there are those who are acting out of other considerations. In the municipal court system, there is often a conflict drawn between pursuing justice through enforcing the law and local level revenue generation. If reasoning with them becomes difficult, request a discussion with the judge, as sometimes what appears to be unreasonable conduct on the side of the judge or the prosecutor is merely a lack of knowledge of the controlling law, and a hostile response resulting from that lack of knowledge. Go into these negotiations prepared; know the law, know the history of file, know what was done to resolve the matter and what can be done to prevent it from happening again in the future.
That being said, often these negotiations will simply be a matter of demonstrating that the violations have been abated and/or agreeing on a reasonable fine or a dismissal.
You should be prepared to answer questions from the bench when entering the plea. Keep in mind that the judge may or may not be familiar with the applicable law in this area. If an issue arises with the judge as a result of this, it is important that an objection be respectfully entered onto the record to preserve the servicer’s rights if an appeal is necessary.
Once the plea is entered, obtain a copy of the invoice listing the fines and costs to forward to the servicer. It is important to follow up with the servicer to ensure the fines are paid in a timely manner.
The number of property preservation matters heard in the municipal court system is expected to rise in the coming years and presents a new opportunity for chancery practitioners.
