By Robert E. Smithson, Esq. and Mario A. Serra, Esq.
Handling municipal court matters has 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 a friend or loved one, but since the explosion of foreclosures in the State of New Jersey, municipal property code violation hearings are becoming far more common in our practice.
Handling these matters can be difficult and frustrating for those who have not previously handled municipal ordinance violations or criminal matters. In the State of New Jersey, municipal courts handle criminal matters, traffic offenses, and violations of municipal ordinances, which are quasi-criminal in nature. Part of what makes practice in this area difficult is the lack of standardization between courts in different municipalities. Many are run efficiently, and with the upmost degree of professionalism, while others are not.
Once a summons for a property code violation has been received, it is important to identify the party to whom the summons has been issued and determine if in fact the summons has been issued to the correct party. New Jersey State law only places an obligation on lenders and creditors 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, and not the lender or creditor is the correct party. In this situation the lender or creditor 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. In some rare cases, code enforcement officials have even issued summons in the name of the law firm representing the lender, as well as attorneys and support staff employed by the firm. This is to be addressed in the same manner as where employees and agents of the lender have been joined.
Once the correct parties have identified, the lender’s property preservation department should 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. Once property preservation has been informed, it is critical to followup on the abatement and obtain photographic evidence that it was completed.
The attorney handling the matter should submit an appearance letter 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 and limits of representation in the matter. This is essential as it can protect one in cases where the court attempts to order one to act outside the scope of ones authorized representation, such as ordering you to remit payment of fines on behalf of the servicer.
Negotiations with the code enforcement officer and prosecutor can be rather dicey at times. While many prosecutors and code enforcement officers are simply looking to have issues with a property addressed, and will act accordingly, 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. As a result some prosecutors and code enforcement personnel may be unreasonable and difficult to negotiate with, and one must remain calm and keep a clear head when dealing with them and explain that the work done, and show proof thereof. If reasoning with them becomes too difficult, then 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. Remember, go into these negotiations prepared and with a cool head; know the law, know the history of file, and 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, most of the time negotiations will simply be a matter of demonstrating that the violations have been abated and/or agreeing on a reasonable fine or a dismissal. During these negotiations, it is essential that you do not provide the name of an agent or employee of the servicer, as this puts that individual at risk of being named in a future summons.
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, it is important to obtain a copy of the invoice listing the fines and costs to forward to the servicer. It is important to followup with the servicer to ensure the fines are paid in the time set by the court.
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.