ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 1  PROCEDURAL HISTORY ....................................................................................  2 STATEMENT OF FACTS .....................................................................................  3 LEGAL ARGUMENT ...........................................................................................  4 POINT I.  The Standard of Review of an Order Dismissing a Complaint for Failure to State a Claim Upon Which Relief Can be Granted.  (Pa31-Pa33)  ........................................................................  4 POINT II.  The FDCPA, as a Federal Statute, Should Be Construed Consistent with How Federal Courts Construe the Statute.  (Not Addressed in the Decision Below)  .................................................  5 POINT III.  Determining Congressional Intent of 15 U.S.C. § 1692c(b).  (Pa9-Pa10) ..............................................................................................................  7 POINT IV.  Putting in Context the FDCPA’s Bar Against Third-Party Communications.  (T34-T36) .......................................................................................  18  A.  FDCPA’s Purpose and Structure ................................................................. 19 B.  Elements of an FDCPA Cause of Action .................................................. 22  C.  The Bar Against Third-Party Communications.  .........................  24 POINT V.  The FDCPA’S Legislative History and Agency Interpretations are Consistent with the Federal Courts’ Decisions.  (As to Legislative History, Pa35)  ...........................................  29 POINT VI.  The Court Should Reverse the Dismissal of Plaintiff’s Non-FDCPA Claims.  (Pa36-Pa40)  .................................................................  31  CONCLUSION ....................................................................................................
[brief] Appellant argues that the trial court’s dismissal under Rule 4:37-2 violated her constitutional right of her liberty to petition.  Br., at 11.  Specifically, Appellant argues that she “followed New Jersey court procedures to file suit within the statute of limitations … [,] to appeal the trial court’s decisions” and “meets all requirements to continue her suit. ”  Br., at 11.  But Appellant has and continues to violate Rule 1:21-1, which provides that subject to certain exceptions that are not applicable here, “no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State, is in good standing” and complies with various requirements.  Rule 1:21-1.  Appellant does not attempt to represent herself.  Instead, she admittedly seeks to represent the decedent’s estate, which this Court expressly held Appellant cannot do.  See generally, PA49-66.  As this Court noted, “an individual acting as a fiduciary or in another representative capacity, asserting claims for a decedent or an estate, cannot appear and prosecute the claim pro se. ”  PA63 (citing Kasharian v. Wilentz, 93 N.J. Super. 479, 482 (App. Div. 1967); R. 1:21-1(a); accord Pressler & Verniero, Current N.J. Court Rules, cmt.  1 on R. 1:21-1 (2023) (“prohibiting such appearances by non-lawyer fiduciaries where the action involves another’s beneficial interests”).  Appellant’s only claims, which were brought under the Survivor’s Act and Wrongful Death Act, were filed on behalf of third parties, not herself.  PA63 (citing Kasharian, 93 N.J. Super. at 482 (“explaining that a plaintiff prosecutes a wrongful death action ‘solely as administrator ad prosequendum in the interest of the entire class of the next of kin of the decedent’”); Smith v. Whitaker, 160 N.J. 221, 233 (1999) (“The Survivor’s Act preserves to the decedent’s estate any personal cause of action that decedent would have had if he or she had survived. ”)).  Accordingly, the trial court’s dismissal under Rule 4:37-2 did not violate Appellant’s due process rights and the trial court’s March 1, 2024 Order should be affirmed.
[brief] *Ibid.*  In fact, Board members were “not entirely familiar with [budget] details. ” (Ra184).  Board meetings are also not led by the Board President, whose responsibility should be to ensure adherence to proper procedure.  (Ra180-81).  Rather, the Board President has effectively abdicated his role and responsibilities to the Board’s attorney.  (Ra133; Ra173; Ra180).  The Report noted that the level of control exercised by the Board’s attorney is unusual, as he takes a “far more active role than the typical board attorney in District business. ” (Ra127; Ra173; Ra191).  On top of that, the Report found that [...]’s “legal expenses per pupil are significantly higher than” comparable districts.  (Ra127; Ra173; Ra191).  In the 2021-2022 school year, for example, the District’s per pupil legal costs were over four times higher than the next highest comparison district, despite the fact that [...] has a significantly smaller public school population.  (Ra171; Ra191).
[brief] Watson, 254 N.J. at 589 (citing to State v. Henderson, 208 N.J. 208, 302 (2011)(which similarly applied its new rules regarding out-of-court identifications prospectively and to its defendant the defendant in its companion case, State v. Chen, 208 N.J. 307 (2011)); Burney, 255 N.J. at 26 (“To ensure orderly proceedings, we outlined in Watson, the required procedures for first-time in-court identifications going forward”); see also State v. Haskins, __ N.J. Super. __, __ (App. Div. 2024)(noting that one of the accepted ways in which a new rule may be applied includes “in future cases and in the case in which the rule is announced, but not in any other litigation that is pending or has reached final judgment at the time the new rule is set forth”).  At the time of the burglary and defendant’s September 2021 trial, the rule governing [...]’s first-time in-court identification was not that yet to be announced in Watson, but instead State v. Clausell, 121 N.J. 298, 327-28 (1990).  In Clausell, the Court held that a first-time in-court identification is “constitutionally valid” so long as “[t]he courtroom atmosphere was” not “so” “suggestive” “as to outweigh the reliability of the identification. ”  The Clausell Court found this standard met, even though the witness “could not identify” defendant from an out-of-court photo lineup, there was a “long delay between the crime and trial,” the courtroom atmosphere “was suggestive, but not so much as to outweigh” its reliability, “[d]efense counsel had ample chance to challenge the accuracy of the identification on cross-examination, and the jury was free to discount its value.
[brief] ”  *Id.* at 301.  The agency’s action was valid given the statute was “sufficiently specific,” *Metromedia*, 97 N.J. at 329—it addressed *exactly* the circumstance of imposing taxes on airplane engine sales.  *Id.* at 333 (discussing *Airwork*).12  Here, the Department’s disapproval of [...]’s rate filings based on a purported “excessiveness” finding was invalid because “no substantive criteria [were] established before the administrative proceedings for determining how to qualify for a [not excessive rate increase].”
[brief] THE COURT FAILED TO APPLY THE REQUISITE LAW IN DISMISSING PLAINTIFF’S VERIFIED COMPLAINT AT THE RETURN DATE OF THE ORDER TO SHOW CAUSE.  (Pa434-35; 1T15:22 – 1T19:3).  N.J.S.A. § 3B:17-2 governs the accounts of personal representatives, and provides as follows:  A personal representative may settle his account or be required to settle his account in the Superior Court.  Unless for special cause shown, he shall not be required to account until after the expiration of 1 year after his appointment.  The second sentence states that an Administrator cannot be compelled to account during his first year without special cause being shown.  In this situation, the trial court is given discretion over whether or not to compel an accounting.  But that situation is not at issue in this case, where the Administrator was appointed more than two years ago.
[brief] [1T P7-15]  The Respondent opposed the Appellants’ motion in part, based upon the 2022 amendment to the Federal Arbitration Act.  The Respondent filed a brief on this issue.  The Respondent raised this issue at the hearing.  The court indicated a preference to resolve the motion based on whether the Appellants’ provided a legitimate signed agreement.  The dispositive issue of the 2022 Amendment to the *Federal Arbitration Act* remains unresolved.
[brief] ”  (Da2012)(Da2015-2016)  “The company’s very survival was at stake, because of [...]’s conduct during and after the transition of control,” and “[i]t was remarkable in real time to be hearing what was going on. ”  (2T26:21-24; 33:1-2)  First, within hours of lifting the stay on February 8, 2016, [...] “within hours” held a “purported members meeting”, to “transfer control...away from plaintiffs.
[brief] [...] presided over the Company as CEO for 14 of the years during which 119 such transactions occurred, and he himself did the calculations, a fact which the trial court failed to acknowledge.  (5T88:12-89:7)  This course of conduct resulted in an unwritten but wholly unambiguous contract that all purchase and sales of interests in [...] be transacted at the prior year’s Tax Book Value.  [...]’s conduct goes far beyond implied consent, because he dictated, implemented, and uniformly applied this valuation to his and others’ transactions.
[directive] Live the with station the within been arrested has defendant after the made will be ordinarily decision warrant a to transported and handcuffed, custody, into taken (i.e., Amendment Fourth of the meaning prosecutor contact officer the to an for beneficial be would it practicable, When station).  police transported custody taken and into is defendant the before approval charging and advice legal for Directive, this consultation by not required is pre-arrest on-scene, such Although station. to the with a consult to require officers Prosecutor to County a of authority the limits herein nothing investigative in the Consultation that stage at arrest. custodial a making before prosecutor taken been have investigative steps on-scene appropriate all that ensure to help would process approve an prosecutor to opportunity the afford would also and exists, cause probable that and risk-assessment pretrial automated the of part as considered be will that charges specific the subsection Cf. system. Scan with Live fingerprinted the is defendant after the initiated process the than offense charging a different approves prosecutor a when situation the (addressing 4.2.7 an where any In case process). risk-assessment pretrial automated in the used been had one that automated the consulted before general is attorney deputy or assistant or prosecutor assistant final a before PSA of results the apprised be should prosecutor that generated, PSA is acomplaint-warrant. for apply or summons a issue to whether made is determination 23 Page to and/or aComplaint-Summons to Issue Police Permit to Authority Prosecutor's County 3.3 A~~roval.
[directive] The following questions need to be answered only if you are pleading guilty for violation of 2C:20-2 for theft of an N.J.S.A. automobile and the offense occurred on or after April 2, 1991, or for a violation of 2C:20-10 for unlawful taking of a motor N.J.S.A. vehicle ("Joyriding") and the offense occurred on or after August 2, 1993.  [예/Yes]  [아니요/No]  귀하가 유죄를 인정하는 경우, 귀하의 운전면허가 몰수당한다는 것을 알고 1.  있습니까?  Do you understand that if you plead guilty you will be required to forfeit your driver’s license?
[brief] . .  I find the fact of the existing small and irregular lot size, COAH’s charge to eliminate cost-generative features of inclusionary zoning and the Court’s specific grant of site specific relief to Your Honor, outweigh the Borough’s desire for first floor commercial uses at this site.  358a-359a.  To date, [...] remains in violation of the court’s judgment: it has not approved the construction of the Off-site Units or advised the court, the Special Master, or the Implementation Monitor as to how it intends to offer a reasonable probability of providing the ordered seven units.
[directive] 7  Role of the Supervisor  7.1  Upon being notified or becoming aware of the pursuit, the supervisor shall decide as quickly as possible whether or not the pursuit shall be permitted to continue and shall broadcast that decision over the police radio channel by declaring “pursuit authorized” or “terminate pursuit. ”  In addition, if the supervisor decides to authorize the pursuit, the supervisor shall broadcast the underlying reason for authorizing the pursuit (e.g., “Pursuit authorized for armed robbery suspect.
[brief] *See Heyert v. Taddese*, 431 N.J. --- \(^5\) [...] states that this issue concerning her request for a plenary hearing was not raised below.  (Pb36.)  But it appears it was.  (Pa000183–84.)  To the extent it was not, however, such an argument is waived.  *E.g.*, *Nieder*, 62 N.J. at 234.
[brief] This case threatens the opportunity to build a critical number of affordable homes.  This opportunity is the product of years of careful settlement negotiation, thoughtful legislative deliberation, and court supervision.  The Appellants had every opportunity to be meaningful participants in this process, but they rejected them.  They should not be permitted to second guess the result now.  For the foregoing reasons, [...] respectfully requests that the court enter judgment denying the Appellants’ appeal and affirming the decision of the lower court.
[brief] Importantly, as the Court observed, “[i]t is undisputed that neither [...] nor [...] had ever financed or built a residential development before they sought to construct the housing at issue. ”  [...], 251 at 560.  Rather, the facts demonstrate that [...] owned and operated a dry-cleaning business prior to these projects.  He was never certified in any professional discipline, nor had he ever taken any courses on real estate, land development, or finance.  His real estate experience was limited to purchasing his own home, rehabilitating a small number of homes in Newark, and inheriting and selling of a small commercial building.  He admitted to never acting “as a developer. ”  Pa 1283.  The Trial Court also observed that although the Supreme Court: abandoned the per se ban on new business profits, the Court did not throw overboard the rationale for the prior, bright line rule.
[brief] Despite the City’s severe economic collapse over the last 8 years, the City has continued to enter into contracts and has agreed to payments and benefits it simply can no longer afford.  The court acknowledges that over the last few years the current administration has made efforts to confront these issues.  Plaintiffs have also made significant concessions, but it simply is not enough.  The State Legislature has determined that [...] requires “prudent fiscal management and operational efficiencies in the provision of public services” in order to recover.  N.J.S.A. 52:27BBBBB-2.  Having carefully reviewed the [MSRA], the case law, and arguments submitted by both sides, the court concludes that plaintiffs are unable to establish a reasonable probability of success on the merits on their challenges to the [MSRA].
[brief] The Trial Court raised concerns with [...]’s failure to promptly provide a copy of the PSA to [...] before executing it as well as [...]’s blatant misrepresentations in the PSA, stating:  For certain, the PSA needed to be amended to correct the misrepresentations made initially as to the existence of the ROFR, as well as affirmative confirmation of [...]’s obligations for potential early termination penalties payable to [...] (including finalization of the early termination penalty payouts that would be required of [...] if its Fuel Supply Agreement with [...] was terminated as a consequence of any sale to [...]).  Da396-397.  The Trial Court observed that beyond just the contractual language in [...]’s favor, there were equitable considerations due to [...]’s behavior, stating, “If anything, at the end of the day, the amendments necessitated and made to the PSA to conform it with the provisions of the MFSA, the ensuing conduct and negotiations by and among the parties in connection with the same, and resultant perfection of the [...] ‘bona fide’ Final Offer intermittently, and equitably, tolled the triggering of the 30-day exercise period until delivery made of the offer by [...] to [...] on May 8, 2023. ”  Da397.  The Trial Court ordered Defendants to cooperate and facilitate a closing on the Premises to Plaintiff within 30 days of the date of the Order.  Da397-398.  This appeal followed.
[brief] [...] Notice of Motion for Summary Judgment  DR01  Order dated 06/10/2024  Granting [...] Motion for Summary Judgment  DR03  Unpublished Decision  Bencosme v. Kannankara 2016  N.J. Super. Unpub. LEXIS 614 (March 22, 2016)  DR05  [...]  [...]  [...]  [...] [...]  Attorney for Defendant, PROGRESSIVE  SOUTHEASTERN INS. CO. Attorney No.: 034231988  BGS&A File No.: [...]  [...]  Plaintiff. vs. [...], [...] and/or PROGRESSIVE  SOUTHEASTERN INS. CO., JOHN DOES 1-10 (fictitiously named) and XYZ COMPANIES 1-10 (fictitiously named), Defendant.
[brief] Prior knowledge, ignorance of known safety requirements, withdrawal of safety practices, and imposition of risks that are both easily avoidable and unnecessary to the work are all factors to be considered.  OSHA citations, ignorance of warnings or complaints, failure to ensure understanding and proper use of safety devices and procedures and the potential for catastrophic injury also are all proper considerations in assessing whether the facts justify denying the employee full compensation and, in effect, encouraging risky behavior in the workplace.  The facts here support a finding that [...]’s conduct was beyond the pale and that the injury was not a fact of life but rather extremely avoidable.
[brief] The Parties’ Negotiations  After their initial meeting, the parties held subsequent meetings at the [...]’s offices in [...], during which the parties discussed the Property in greater depth and began negotiating potential terms of sale.  On the Defendants’ side, those involved in the negotiation and drafting of the contract included Defendant [...], [...], and Defendants’ attorney, [...], who was retained as transactional counsel in approximately July 2019.  Those involved in negotiations on behalf of Plaintiff included the [...], Plaintiff’s transactional counsel, [...], Esq.  (“[...]”), and Plaintiff’s environmental professional, [...], the Founder and former President of [...] (“[...]”) until his death in May 2020.  After [...]’s passing, [...] and [...] assumed his responsibilities at [...] with respect to Plaintiff and the Property.  (4T20:15 to 21:3, 156:17 to 157:8.)  Throughout their negotiations, the parties exchanged information concerning the Property and also conducted site inspections.  (4T23:5-18; 8T22:18 to 24:5.)  In August 2018, Defendants provided [...] with a Remedial Investigation Summary Report (the “RI Summary Report”) that was prepared by [...] and [...].  (4T23:25 to 24:21; 8T21:23 to 22:6, 39:19-24; Pa0292.)  The RI Summary Report indicated that [...] was in the process of preparing a Preliminary Assessment Report, identified six areas of concern (each an “AOC”) on the Property, which represent locations in which there is potential contamination to the soil or groundwater, and also outlined the remaining steps they deemed necessary to complete the remaining remedial action of soil and groundwater at the Property.  (Pa0294; Pa0303-05; 4T25:1-17, 30:19 to 31:17; 8T72:10 to 74:2.)  The first AOC (“AOC-1”) identified in the RI Summary Report pertained to the hydraulic oil spill that occurred in 2011, which has since been resolved and is no longer an issue.  (4T25:18 to 26:22; Pa0294.)  The remaining AOCs identified in the RI Summary Report are as follows: (i) “AOC-2”, which is a former battery casing storage area from the 1950s-1960s; (ii) “AOC-3”, which represents former and current operational areas impacted with lead and polychlorinated biphenyls (“PCBs”); (iii) “AOC-4”, which represents the site-wide historic fill underlying the entirety of the Property; (iv) “AOC-5”, which is the storm sewer system; and (v) “AOC-6”, which is the former location of an underground storage tank (“UST”) likely used to store gasoline.  (Pa0294; 4T26:24 to 28:24.)  [...] also indicated in the RI Summary Report that if any additional AOCs were identified during the Preliminary Assessment process, they would be investigated during the next phase of delineation sampling at the Property.  (Pa0294.)  As part of the [...]’ due diligence, [...] reviewed the historical data of the Property, conducted a site inspection and, in approximately August 2018, prepared a draft preliminary assessment report (the “RT PA Report”) reflecting its preliminary findings from their limited site inspection and review.  (4T23:5-18, 36:7-20, 149:24 to 151:5, 157:9-22.)  B.
[brief] Similarly, the decisions of this court haven't changed.  In N.J. Coalition of Health Care Providers, Inc. v. DOBI, 323 N.J. Super. 207-262 (App. Div. 1999) this court found that although an injured party or medical provider would be entitled to an award of money with a discretionary award of counsel fees, an insurance carrier if successful would not be entitled to an "award" of any such fees.  This court stated that "[it found] nothing in the Legislature's findings and declarations contained in N.J.S.A. 39:6A-1.1(b) expressing an intention to permit an award of counsel fees to an insurance carrier against an insured or injured person in the statutory dispute – resolution process.
[brief] ”  Evid R. 403.  While “[t]he burden is clearly on the party urging the exclusion of evidence to convince the court that the [Evid. R.] 403 considerations should control[,]” (See Parker v. Poole, 440 N.J. Super. 7, 21 (App. Div. 2015), citing Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001); citation and internal quotation marks omitted), defense counsel at first expressed confusion as to the purpose of the evidence, but soon followed the court’s lead in opposing any mention of [...]’s actions.  (1T23-20 to 25-6).  (For the complete colloquy on the subject, See 1T17-11 to 28-5).  The court’s refusal to permit this testimony relying on Evid. Rule 407 precluding the admission of evidence of remedial measures to prove negligence ---
[brief] On July 5, 2020, at 1:31 a.m., Newark Police received a call that a possible shooting had taken place at [...], a public housing complex.  (Da23\(^3\); 1T6-12 to 7-2).  Officers [...] and [...], in uniform and in a marked police car, responded, arriving at the scene at 1:39:10 a.m. (1T5-13 to 7-2; Da23; Dca 1, clip one, 1:39:10 a.m.).  On arrival, they entered the central courtyard, where they encountered defendant seated on a retaining --- \(^2\) Officer [...]’s video is in five separate clips, contained in four folders.  (The fourth and fifth clips are both in the fourth folder.)  The first clip begins at about 1:36:20 a.m., and ends at about 2:01:23 a.m.  The second clip begins at about 2:19:48 a.m., and ends at about 2:25:15 a.m.  The third clip starts at about 2:39:08 a.m., and ends at about 3:34:57 a.m.  The fourth clip does not indicate time of day, but lasts about 1 hour, twenty minutes.  The fifth clip, which also does not indicate time of day, lasts about forty-two minutes, thirty-four seconds.  Less than five minutes into the fifth clip, daylight can be seen through a hallway window.  Herein, reference is made where appropriate to either actual time of day or running time, as the case may be.  Contrary to defendant’s implication, while the hours of video were not all viewed during the suppression hearing, the entire video was entered into evidence.