E364 Mar 15 1. Real Estate Sales - Spring is the Time to prepare your home for sale 2. Motion to suppress granted when police did not obtain telep

E364 Mar 15

1. Real Estate Sales - Spring is the Time to prepare your home for sale

2. Motion to suppress granted when police did not obtain telephonic search warrant for car

3. Next events: Middlesex County Bar Association Practice Area Awards Dinner plus charity races

1. Real Estate Sales - Spring is the Time to prepare your home for sale

To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4-hour period after taking numerous classes. Mr. Vercammen is now also a licensed real estate agent, is affiliated with is one of the largest real estate agencies in the country. Even if we cannot handle the closing, we can refer you to realtors or attorneys experienced in real estate purchases or sales.

The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.

The Contract of Sale

A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.

Since the Contract of Sale is important and legally binding New Jersey requires a 3-day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As is", make sure they are added to the Contract before signing.

The 3-day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.

Read and Understand the Contract Before Signing your Contract of Sale

Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:

1. read the entire contract

2. written down your questions and posed them to your realtor

3. made sure all your requested clauses are included, such as the house being sold "as is"

These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.

Work with your Realtor

Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection. Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.

The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.

Closing date is approximate

You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.

If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.

SELLERS INFORMATION SHEET- To be filled out by seller and returned to seller's attorney

KENNETH VERCAMMEN & ASSOCIATES, PC

1. SELLERS NAME: (as it appears on deed)

___________________________________________________________

2. Real Estate being Sold: Lot No. _________ Block No. __________

Address: __________________________________________

3. Present Mortgage Company: _____________________________

Address: ___________________________________________

Loan No. ___________________ 800 Telephone No. ____________

(Provide copy of payoff amount)

4. Other Mortgages, including Bridge Loans or Home Equity:

Name of Mortgage Company: _____________________________

Address: __________________________________________

Loan No. __________________ 800 Telephone No. ____________

(Obtain written copy of payoff amount from bank, a verbal payoff will not be good enough)

5. Social Security Number: (H) ________________ (W) ___________

6. Is any Seller age 62 or over? If so, name and date of birth: _________

7. Name, Address, Telephone number of Condominium Association, if any

_______________________________________________________

8. Type of Fuel: Gas ___________________ Oil _______________

PLEASE ATTACH A COPY OF TITLE INSURANCE, SURVEY, & DEED (not original)

9. Marriage Information:

Date of Marriage __________ Maiden or Prior Name(s) __________

Prior Marriages ________________________

(copy of Final Judgment of Divorce needed, not original)

2. New case: Motion to suppress granted when police did not obtain telephonic search warrant for car. STATE v. SHANNON

A-2549-08T4 02-03-11

The court reversed defendant's conviction of possession of cocaine,

finding his motion to suppress the cocaine found in a

warrantless search of his Jeep should have been granted. The

search was not incident to arrest, did not occur late at night,

the stop was in a residential area, and four Asbury Park Police

Officers were at the scene with defendant, who was alone. The court found

no exigency existed pursuant to State v. Pena-Flores, 198

N.J. 6 (2009).

3. Next events:

Middlesex County Bar Association Practice Area Awards Dinner March 16th @ 6:15pm
The Pines Manor, 2085 Route 27, Edison

Municipal Court Practice Award- Jeremy Solomon, Esq. He has served throughout Middlesex County as a highly respected and experienced Municipal Prosecutor. Mr. Solomon prosecutes in East Brunswick, South Brunswick and Middlesex Boro. Past award winners include John Novak and Ken Vercammen

http://www.mcbalaw.com/cde.cfm?event=320702

St. Patrick’s Day March 17

5:30 Green Derby 2024 Woodbridge Ave Edison, NJ 08817- Stop by and Ken V will buy you a beer

6:15 Hailey's Harp And Pub- Stop by and Ken V will buy you a beer

400 Main Street

Metuchen, NJ 08840-1807

7:15 Edison Elks Stop by and Ken V will buy you a beer

375 Old Post Road Edison, NJ 08817-4653

3/20/2011 St. Paddy’s 10 miler & 5k 9:30 Freehold Keg of beer and some food great FARC event keg is outside. Dress warm

3/26/2011 Rat Race 10:00 AM - 10K and 11:00 AM - 20K Wells Mills Park on Barnegat Bay, Waretown, plenty of free beer, fun Bill Scholl party Rumson Hash event exit 69 on parkway

Sunday, March 27, 5K Run at 10 AM Captain Ron Zinn 5k WALL TOWNSHIP RECREATION COMPLEX, OFF ALLAIRE ROAD, WALL TWP, NEW JERSEY.

Saturday, April 2, Fools Run 5k 11am Manasquan, NJ

April 3, 2011 Indian Trails 15k, 5k 9am Middletown [Ken V is past winner]

E363 1. Free Lunch, Free Law rescheduled to March 16 Subscribers and persons receiving our newsletter invited 2. Coarse language in anger can be gr

E363 1. Free Lunch, Free Law rescheduled to March 16 Subscribers and persons receiving our newsletter invited

2. Coarse language in anger can be grounds for Domestic Violence Restraining Order

3. Belmar St. Patrick Parade March 6

1. Free Lunch, Free Law rescheduled to March 16 Subscribers and persons receiving our newsletter invited

2011 update Wills and Estate Planning- Free Seminar Lunch & Law

WHEN: Wednesday March 16, 2011 12:15-1:00 PM

WHERE: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

COST: Free if you pre-register. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials. Complimentary Sandwiches and materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Re-scheduled from the January 12 snow cancellation.

SPEAKER: Kenneth Vercammen, Esq.

(Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills

2. 2011 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Question and Answer

COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.kennethvercammen.com/2011.update.Wills.html

2. Coarse language in anger can be grounds for Domestic Violence Restraining Order C.M.F. VS. R.G.F. __ NJ Super. App Div. A-4826-08T2

Defendant admittedly shouted offensively coarse names at his wife at their children's basketball game but argued that he was motivated by anger rather than an intent to harass her. Pursuant to State v. Hoffman, 149 N.J. 564 (1997) and N.J.S.A. 2C:33-4(a), the requisite intent was "to disturb, irritate or bother." We affirm the final restraining order against defendant because his anger did not negate an intent to harass and, considering the totality of the circumstances, the evidence supported the conclusion that defendant's purpose in directing the offensively coarse language at plaintiff was to harass her.

3. Belmar St. Patrick Parade March 6 Join Jersey Shore Running Club JSRC to watch Belmar St Patrick’s Day Parade and inexpensive beer. If you are going call Ken V. A great way to start St. Patrick’s month start is approx 12:30

E362 1. Liability for Snow and Ice Fall Downs 2. DWI Alcotest Result Thrown Out Where State Police Did Not Use Approved Digital Temperature Measurin

1. Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks.    The law imposes upon the owner of commercial or business property the duty to use reasonable care to see to it that the sidewalks abutting the property are reasonably safe for members of the public who are using them. In other words, the law says that the owner of commercial property must  exercise reasonable care to see to it that the condition of the abutting sidewalk is reasonably safe and does not subject pedestrians to an unreasonable risk of harm. The concept of reasonable care requires the owner of commercial property to take action with regard to conditions within a reasonable period of time after the owner becomes aware of the dangerous condition or, in the exercise of reasonable care, should have become aware of it.        If  there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if  the owner knew of that condition or should have known of it but failed to take such reasonable action to correct or remedy the situation within a reasonable period of time thereafter as a reasonably prudent commercial or business owner would have done under the circumstances, then the owner is negligent.   No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to  retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon.   If the unsafe condition is alleged to be snow and ice, N.J.S.A. 40:64-12 and any ordinance adopted by the municipality might be charged as a factor, the jury should consider the reasonableness of the time the defendant(s) has (have) waited to remove or reduce a snow or ice condition from the sidewalk.   What actions must the owner of commercial property take with regard to defects / snow / ice accumulation/ dangerous conditions? The action required by the law is action which a reasonably prudent person would take or should have taken in the circumstances present to correct the defect / snow / ice accumulation/ dangerous condition, to repair it/remove it or to take other actions to minimize the danger to pedestrians (for example, to give warning of it) within a reasonable period of time after notice thereof. The test is: did the commercial property owner take the action that a reasonably prudent person who knows or should have known of the condition would have taken in that circumstance? If he/she did, he/she is not negligent. If he/she did not, he/she is negligent.   If you are injured, after seeking medical treatment and advising the store/mall,  CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 for an Appointment.   More Info At:   http://www.njlaws.com/fall_down_injuries_on_snow.htm

2. DWI Alcotest Result Thrown Out Where State Police did not use Approved Digital Temperature Measuring Device. State v. Holland, Law Div. - Monmouth Co. (English, J.S.C.)          Defendant was charged with driving while intoxicated and filed a motion to suppress the results of the Alcotest. The issue is whether the State's production of a certificate of a digital temperature probe manufactured by Control Company, Inc. contrary to the requirement in State v. Chun, which explicitly provides that the State shall produce a Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability, renders the results of the Alcotest unreliable and, thus, inadmissible. The court found no evidence in the record below to show that the digital temperature probe manufactured by Control Company is the same or similar to the Ertco-Hart digital temperature probe manufactured by Draeger Safety. The court found that the dictates of Chun were not satisfied. The results of defendant's Alcotest readings are suppressed and her municipal court conviction is vacated. Source: dailybriefing@njsba-njldailybriefing.com Daily Briefing - 02/11/2011 3. Should I Cancel My Life Insurance because of the New Tax Law? By Thomas D. Begley, III   In December 2010, Congress and President Obama passed legislation, which, in part, significantly altered the federal estate tax. For the next two years, there is a federal estate tax exemption of $5,000,000 per person.  With a proper post-mortem election, a couple can preserve $10,000,000 without any pre-mortem planning.  Of course, with proper planning, this $10,000,000 objective can be attained as well.     In light of this great expansion of the federal estate tax exemption, many individuals are understandably questioning whether or not they need to maintain current levels of life insurance.  For some individuals, it may no longer be necessary for life insurance to be maintained.  However, for the vast majority of individuals, they should keep their life insurance policies intact.    There are a variety of uses for life insurance.  The three primary uses are as follows.  First, it is an excellent vehicle to provide for a family in which there are young children and in which a surviving spouse may have limited income.  In this situation, maintenance of life insurance is necessary to ensure that a surviving spouse and/or minor children are financially secure.  Second, life insurance provides an excellent source of liquidity.  Many estates are comprised of assets, which are predominantly illiquid or inadvisable to liquidate.  Such estates are those, which include real property, which may take some time to sell, and retirement plans, which generate significant income taxes if liquidated at rates quicker than required for minimum distributions.  Third, life insurance can minimize or avoid death taxes.  These include not only the federal estate tax, but various state estate and inheritance taxes as well.    When you are reviewing your estate plan with respect to these tax law changes, please feel free to contact us for assistance.  We are happy to help.   Source: Tom Begley, III Begley Law Group, 509 South Lenola Road, Building 7, Moorestown, NJ 08057.    Tom Begley is a speaker at the Annual Nuts & Bolts of Elder Law program in April.  Congratulations South Brunswick HS wrestling team- District Champs Editorial Assistance provided by Susan Rosti, Esq.  Ms. Rosti earned her law degree from Pace University School of Law and is licensed in New Jersey and New York. Ms. Rosti currently is Of Counsel Attorney at Kenneth Vercammen and Associates, P.C.

 

E361 1. New Law Gives Car Accident Victims Priority over Car Insurance Company Subrogation Claims 2. Back to Running after 5 Months Rehab. 3. Prior

1. New Law Gives Car Accident Victims Priority over Car Insurance Company Subrogation Claims. Gov. Chris Christie has signed a bill mandating that when an injured party and a PIP carrier seek recovery from an at-fault party's insurer, the injured party is to be made whole first. This law amends the statutory provision which permits an insurer, health maintenance organization or governmental agency which has paid personal injury protection (PIP) benefits under a private passenger automobile insurance policy to recover the amount of those benefits paid from the tortfeasor, or the Tortfeasors insurer. The amendment made by the bill provides that any recovery by the insurer, health maintenance organization or governmental agency from the tortfeasor's insurer shall be subject to any claim by the injured party and shall be paid only after satisfaction of that claim, up to the limits of the insured tortfeasor's motor vehicle or other liability insurance policy. This bill is in response to the decision in Fernandez v. Nationwide Mutual Fire Ins. Co., 402 N.J.Super. 166 (App. Div. 2008), aff'd, 199 N.J. 591 (2009), in which the Appellate Division held, and the Supreme Court of New Jersey affirmed, that under the statute at issue, the claim of an insurer which has paid PIP benefits has priority over the claim of that insurer's insured who seeks recovery from the tortfeasor's liability insurance for unpaid medical expenses, pain, suffering, or other damages caused by the accident. The amendment made by this law would reverse that outcome. The measure, S-191, signed on Jan. 28, amends the Personal Injury Protection subrogation statute, N.J.S.A. 39:6A-9.1(b), to provide that recovery from a tortfeasor's carrier by an insurer, health maintenance organization or governmental agency is "subject to any claim against the insured tortfeasor's insurer by the injured party and shall be paid only after satisfaction of that claim, up to the limits of the insured tortfeasor's motor vehicle or other liability insurance policy." The Court held that giving priority to reimbursing the carrier "advances stability in the insurance marketplace by requiring that the ultimate cost of PIP benefits be borne by the insurer of the responsible party, not by the insurer of the victim." Source: dailybriefing@njsba-njdailybriefing.com 02/02/2011 2. Back to Running after 5 Months of Rehab Small steps for Ken on Feb 6, the first sunny day since December. He jogged for 12 minutes and was his first running since the NJ Triathlon in July. He hopes to get doctor clearance to jog in the following charity races: March 13, 2011 Keith McHeffey 3 Mile Fun Run 11am Sea Bright, plus a party at a pub afterward March 20, 2011 St. Paddy's 5k 9:30 Freehold Keg of beer and some food, great FARC event keg is outside, Dress warm March 26, 2011 Rat Race 10AM - 10K and 11AM - 20K Wells Mills Park on Barnegat Bay,Waretown plenty of free beer, fun Bill Scholl party Rumson Hash event,exit 69 on parkway 3. Prior Refusal to take Breath Test does not Count for 3rd DWI. State v. Ciancaglini __ NJ ___ (A-92/93-09) Defendant Ciancaglini's conviction in 2006 for refusing to take a breathalyzer test does not constitute a prior conviction for purposes of determining her sentence for driving while intoxicated in 2008. Appellate Division reversed. The Supreme Court held: 1. To interpret a statute, courts look to the Legislative intent, examining first the plain language of the statute. If the statute is clear on its face, courts enforce it; if it is ambiguous or open to more than one meaning, courts may consider extrinsic evidence, including legislative history and committee reports. Any reasonable doubt concerning the meaning of a penal statute must be strictly construed in favor of the defendant. 2. Although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4 are both part of a statutory complex designed to rid the highways of drunk drivers, each is a separate section with a different, albeit related, purpose, and each has different elements. Under the DWI statute, N.J.S.A. 39:4-50, operating a motor vehicle while intoxicated subjects the defendant to penalties that are based on the number of prior offenses the defendant has committed. For a first offense in which the driver's blood alcohol content is .10% or higher, the sentence includes a license suspension of seven months to one year, a fine, and a jail term of not more than 30 days. For a second violation, the sentence includes a two-year license suspension, a fine, and a jail term of up to ninety days. For a third or subsequent violation, the sentence includes a ten-year license suspension, a fine, and a jail term of 180 days. However, the DWI statute contains a "step-down" provision that states that "if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second conviction for sentencing purposes." The refusal statute, N.J.S.A 39:4-50.4a, is similarly structured with penalties based on whether the conviction is the driver's first, second, or third or subsequent offense. It requires the revocation of the right to operate a motor vehicle by any driver who, after being arrested for DWI, refuses to submit to a breathalyzer test. The length of license suspension for refusal mirrors the length of the license suspensions for DWI. However, no custodial sentence is authorized for refusal convictions. 3. Until the Appellate Division in this case reached the opposite conclusion, DiSomma represented the controlling case for sentencing DWI offenders with a prior refusal conviction. In DiSomma, the Appellate Division examined both the DWI statute and the refusal statute and determined that their provisions were intended to be separate. Concluding that a prior refusal conviction cannot serve as the basis to enhance a subsequent DWI conviction, the defendant, who had a prior conviction for refusal, was sentenced as a first offender after his DWI conviction. Since DiSomma, there have been no legislative revisions to the DWI or refusal statutes suggesting an integration of refusal convictions into DWI sentencing. Although a 1997 amendment to both the DWI and refusal statutes was designed to ensure that DWI and refusal convictions in other jurisdictions qualify as prior offenses under the respective sections in New Jersey, the Legislature never endeavored to provide that a prior refusal conviction could be treated as a prior DWI. 4. The DWI statute contains no reference whatsoever to the refusal statute, and nothing suggests that the references to prior violations in the DWI statute's lists of penalties are meant to refer to anything beyond DWI convictions. Without any statutory cross-reference, or similar expression, the most natural reading of the DWI statute suggests that the "prior" violations described in N.J.S.A. 39:4-50 are meant to refer only to the DWI section in which they are contained. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed. 5. While the record is not clear as to whether Ciancaglini's 2006 refusal conviction was or was not incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, even after an acquittal of DWI, it would have to do so in clearer language. 6. The Court determines that it need not decide in this case whether a person can twice take advantage of a stepdown under N.J.S.A. 39:4-50 because Ciancaglini's refusal conviction cannot be considered a prior DWI violation for enhancement purposes. As such, she is not precluded from the benefit of the step-down since her first DWI conviction in 1979 was more than ten years prior to her second, the 2008 DWI conviction. Editorial Assistance provided by Lauren DiLella, who is currently participating in Kenneth Vercammen's Spring Volunteer Internship Program. Ms. DiLella is currently a Senior at Caldwell College, majoring in Psychology.