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December 18, 2014

by Goldstein Law Group
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Although many government statistics point towards economic recovery, the New Jersey residential real estate market has been slow to recover. Granted, there has certainly been some gradual increases seen in the price of homes since the mortgage fiasco and real estate crash of ’08/’09. However, many homeowners still find themselves in a situation when they go to sell their home that their mortgage balance(s) exceed the fair market value of their home. As a result, they must seek short sale approval of their home from their lender(s) if they want to sell it before the market takes its sweet time to recover more. And, with some homeowners having experienced a loss in value by 25-30% or more, that may never happen in one’s lifetime. As an alternative, a seller can pursue, and must secure their mortgage lender’s consent to the sale of the home at a price that will not result in sufficient proceeds from that sale necessary to pay off their mortgage balance(s). Many lenders will, under the correct circumstances, and after reviewing the specific situation of the seller (including the seller’s finances as well as the facts surrounding the specific sale, such as the price at which it is sought to be sold as compared with a market value analysis or appraisal, and the amount of the anticipated deficiency). Assuming the borrower meets the requirements of their lender(s) and qualifies to complete the short sale, in most instances, that consent from your lender would include a cancellation or forgiveness of you, by that lender, for the balance you may have otherwise still owed on your mortgage(s) in excess of the amount the lender receives from your sale transaction. That’s the good news. The bad news that typically accompanied it was – the amount of the debt which the lender agreed to forgive or cancel was considered by our tax laws as taxable income to you! Thus, you had to pay income tax on the amount of the deficiency on your mortgage which the lender forgave or cancelled. Many sellers viewed this as a penalty to them, in effect- a slap in the face. Now, the good news!
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If a person feels that his or her life, safety, or health is at risk because of the acts or threats of another person, he or she may be able to obtain a temporary restraining order from a judge in New Jersey. The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq is the body of law in New jersey that was enacted, and designed to provide a swift remedy to protect a  victim from abuse.   Similarly, if you are a defendant that believes you were wrongfully accused of having committed an act of domestic violence, the consequences of having a restraining order entered against you can have long term impact.

Domestic violence is pervasive. It knows no socio-economic boundaries.  If you are the victim of domestic violence, or if you have been accused of committing an act of domestic violence, you should call an experienced, licensed  domestic violence attorney in New Jersey to zealously represent your rights.

Procedurally, a victim of domestic violence may seek a temporary restraining order (T.R.O.) from a Superior Court judge in the family division of the county court where the alleged act of domestic violence occurred, the county where the victim resides, or where the defendant resides.  If the Superior Court is closed at that time, the victim should immediately contact the local police department who will then contact the municipal court judge. The municipal court judge will speak with the victim by telephone to ascertain the facts. The judge will then decide if the victim has described a set of facts that are sufficient to obtain a TRO.  If the judge decides to grant the TRO to the victim, the police will prepare and serve the TRO on the defendant immediately.   In many instances, the victim is granted the exclusive use and occupancy of any shared residence the two people had occupied up until the alleged act occurred.  In addition, the victim is presumptively entitled to temporary custody of any minor child.  The court will schedule the matter for a hearing within the next 5-10 days to allow the defendant to tell his or her side of the story.  Keep in mind, a TRO, if issued, is frequently issued without the judge  hearing the defendant’s version of what may have transpired.  Generally, our legal justice system does not so drastically effect a person’s rights and due process without a hearing. However, because of the need to balance the immediate protection of a potential victim of domestic violence, the remedy is swift.  To balance that significant impact on a person’s due process whereby  a defendant  in many instances will be denied the opportunity to be heard before he or she is literally removed from one’s home, the court must hold a hearing fairly quickly as well. This hearing is when the court will decide if the TRO should now become a final restraining order (‘FRO”) if the victim proves his or her allegations or, if the defendant can successfully defend against those allegations, the judge will dismiss the TRO and the restraints against the defendant will be vacated.

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